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GRAHAM  k  LANE'S 
EXCISE  LAWS 

OK  THE 

STATE  OF  NEW  YORK, 

INCLUDING  THE 

RIGHTS,  DUTIES  AND  LIABILITIES 

OF 

HOTEL  KEEPERS. 


BY 

C.  H.  GRAHAM  and  0.  F.  LANE, 

COUNSELORS  AT  LAW. 


ALBANY,  K  Y.:  / 

W.  G,  LITTLE  &  GO.,  Law  Booksellers  and  Publishers, 

1883. 


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THE 

EXCISE  LA"WS 


OF  THE 


STATE  OF  NEW  YORK, 


INCLUDING  THE 


RIGHTS,  DUTIES  AND  LIABILITIES 


OF 


HOTEL  KEEPERS. 


BY 

C.  H.  GRAHAM  and  O.  F.  LANE. 

COUNSELORS  AT  LAW. 


ALBANY,  N.  Y.: 
W.  C.  LITTLE  &  CO.,  LAW  BOOKSELLERS  AND  PUBLISHERS, 

1883. 


COPYRIGHT, 

GRAHAM  &  LANE, 

1883. 


Riggs  Printing  and  Publishing  Company, 
PRINTING,  BINDING  AND  ELECTROTYPING, 
461  Broadway,  Albany,  N.  Y.   


/a:  - 1 ' 

DWR..ST 


PREFACE. 


To  the  Public  : 

In  submitting  this  work  upon  the  excise  and  hotel  laws, 
and  the  duties  and  liabilities  of  hotel  keepers,  it  is  done 
with  a  full  knowledge  of  the  difficulties  to  be  overcome. 

From  a  long  practice  and  a  thorough  examination  of  these 
laws  as  scattered  through  our  statutes,  as  well  as  by  an 
examination  of  an  occasional  work  covering  some  portion 
of  the  ground  by  some  author  who  discovered  its  necessity, 
we  have  become  satisfied  that  there  is  a  chance  for  much 
improvement ;  but  that  our  work  is  perfect  we  do  not  pre- 
tend. Difficulties  are  many,  in  the  way  of  a  thorough  eluci- 
dation, and  if  we  have,  in  the  main,  succeeded,  we  shall  be 
satisfied. 

The  practitioner  and  temperance  reformer  meet  many  dif- 
ficulties in  their  efforts  to  enforce  the  excise  laws.  These 
we  have  attempted  to  surmount.  We  cannot,  however, 
make  it  easy  or  reputable  to  engage  in  the  business  of  an 
informer,  neither  can  we  restrain  the  liquor  seller  from  de- 
nying his  guilt,  or  induce  the  excessive  drinker  to  abstain 
from  his  cups  and  prosecute  the  men  who  have  robbed  him 
and  his  family  of  their  sustenance. 

Our  labor  is  not  for  the  special  purpose  of  reformation, 
but  simply  to  collect  and  arrange  the  law  as  we  find  it  filled 
with  many  imperfections  and  sometimes  contradictions  and 
endeavor  to  present,  as  far  as  possible,  the  law  of  to-day, 
and  the  various  decisions  thereon  by  the  courts  that  help  to 
elucidate  and  explain  the  conflicting  and  ambiguous  stat- 
utes. If,  under  the.  various  sections  of  the  several  statutes, 
we  have  made  too  many  explanations,  it  is  because  the  work 
is  intended  to  meet  the  eye  of  those  not  learned  in  the  law, 


4 


PREFACE. 


as  well  as  to  assist  those  of  our  profession  who  have  not  the 
time  to  examine  all  the  questions  to  be  found  herein,  and 
who  prefer  to  take  some  things  for  granted,  and  feel  that  in 
so  doing  they  are  relying  upon  some  one  who  has  given  the 
subject  thorough  examination,  and  that  the  result  of  such 
examination  is  before  them. 

Errors  there  are  no  doubt,  but  they  have  been  avoided  as 
carefully  as  possible,  and  our  work  is  submitted  with  the 
conviction  that  it  is  not  wholly  in  vain. 

To  every  lawyer  it  is  a  necessity,  to  innkeepers  it  is  im- 
portant, as  it  gives  them  the  opportunity,  easily,  to  know 
the  law  and  their  liabilities  thereunder,  and  to  excise  com- 
missioners, overseers  of  the  poor  and  temperance  reformers 
it  is  important,  that  they  may  know  their  duties  and  the 
labor  that  lies  before  them. 

The  Authobs. 


CONTENTS. 


CHAPTER  I. 

STATUTES. 
SECTION  I. 

Commissioners  of  excise — how  and  when  elected— certain  town  and  village 
officers  ineligible — qualifications  of — number — duties — compensation — how 
paid — term  of  office — vacancies,  how  filled. 

SECTION  II. 

Commissioners,  how  voted  for — oath  of  office — must  file  bond — excise  money — 

how  disposed  of. 

SECTION  III. 
Certain  special  acts  not  affected. 

SECTION  IV. 

Appointment  of  commissioners  in  cities  other  than  New  York,  Brooklyn,  and 
Poughkeepsie — how  appointed  in  New  York,  Brooklyn  and  Poughkeep- 
sie — term  of  office — salaries  in  cities — how  fixed  and  paid — disposal  of  ex- 
cise moneys — commissioners  may  be  removed. 

SECTION  V. 
Declaratory  of  the  several  statutes  in  section  4. 

SECTION  VL 

Special  act  for  New  York  and  Brooklyn — powers  and  duties  of  commissioners 
in — may  license  persons  not  innkeepers. 

SECTION  VII. 

New  York  and  Brooklyn — commissioners  may  allow  licensee  to  remove  to  other 
premises — preliminaries  required. 

SECTION  VIII. 

New  York  and  Brooklyn — licensee  not  to  be  arrested  without  warrant — limited 

to  certain  defenses. 


6 


CONTENTS. 


SECTION  IX 

New  York  and  Brooklyn— Section  6,  act  of  1857.  not  applicable  to  New  York 

and  Brooklyn. 

SECTION  X. 

Sale,  etc  ,  without  license  a  misdemeanor — existing  laws  as  to  sale,  etc.,  and 
penalties  the  same  as  under  act  of  1857,  except  as  modified. 

SECTION  XI. 

When  commissioners  to  meet  to  grant  licenses  in  towns — in  cities — when 

licenses  expire. 

SECTION  XII. 

Qualifications  of  applicants  for  license— place  of  sale  to  be  named  in  applica- 
tion— license  fee  in  towns — in  cities — application  for  license — license  to  be 
posted  up — board  to  keep  record — contents — five  gallons  and  over  may  be 
sold  without  license. 

SECTIONS  XIII,  XIV,  XV,  XVI. 

Sections  2,  3,  4  and  5  of  the  act  of  1857,  and  generally  superceded. 

SECTION  xvn. 

Hotel  keepers  only  to  be  licensed — qualifications  of — accommodations  and  re- 
quirements— commissioners'  liabilities  for  illegal  proceedings. 

SECTION  XVIII. 
Applicants  to  give  bonds— amount,  sureties  and  conditions. 

SECTION  XIX. 
What  innkeepers  must  keep— penalty  for  neglect— how  recovered. 

SECTION  XX. 
Innkeeper  to  put  up  sign — to  be  kept  up— what  to  contain. 

SECTION  XXI. 

Hotel  keeper  cannot  recover  for  liquors  trusted  out  except  to  lodgers — securities 
therefor  void — shall  forfeit  double  the  security  for  evasion. 

SECTION  XXII. 
Store  keeper's  license  to  prohibit  drinking  on  the  premises. 

SECTION  XXIII. 

Store  keepers  to  give  bond— its  conditions — drinking  on  the  premises  prima 
facie  evidence  of  occupant's  intent,  etc., — unconstitutional. 

SECTION  XXIV. 
Selling  by  measure  without  license — penalty  therefor. 

SECTION  XXV. 
Selling  to  be  drank  on  premises  without  license — penalty  therefor. 


CONTENTS. 


7 


SECTION  XXVI. 

Innkeepers  and  store  keepers  not  to  sell  to  Indian,  apprentice  or  minor,  except, 
etc., — offenders  to  forfeit  ten  dollars — who  to  recover — certain  sales  de- 
clared misdemeanors.  • 
SECTION  XXVII. 

Duties  of  officers  and  magistrates  as  to  offenses — exclusive  jurisdiction,  when — 
bond  of  offenders — contents — magistrate  to  send  papers  to  district  attorney 
his  duty. 

SECTION  XXVIII. 
Duty  of  officer  and  magistrate  as  to  persons  publicl}*  intoxicated — exclusive 
jurisdiction — fine  or  punishment  for  offense — penalty  if  officer  or  magis- 
trate neglect  his  duty. 

SECTION  XXIX. 
Selling  or  giving  to  intoxicated  person  forbidden — penalty  therefor. 

SECTION  XXX. 

Duty  of  magistrates  and  overseers  of  the  poor  when  complaint  made  of  habitual 
intoxication  against  husband  or  wife,  etc., — notice  to  dealers — selling  after 
notice — penalties  therefor — how  recovered. 

SECTION  XXXI.  * 
Sales  made  as  prohibited  under  last  section  subjects  vendor  to  a  fine  and  loss  of 
license — sale  to  paupers  forbidden — penalty  and  punishment  therefor. 

SECTION  XXXII. 
Liquors  not  to  be  sold  on  election  days,  etc., — penalties  and  punishment. 

SECTION  XXXIII. 
Penalties,  except  under  sections  15  and  19,  to  be  sued  for  and  recovered  by  and 
in  the  name  of  the  overseer  of  the  poor — exceptions  to  the  rule — disposition 
of  the  money  recovered. 

SECTION  XXXIV. 
Where  dealer's  bond  to  be  filed. 

SECTION  XXXV. 
Who  to  prosecute  for  the  breach  of  condition  of  bond. 

SECTION  XXXVI. 
On  conviction  or  judgment  for  violations,  magistrate  to  forward  statement  to 
next  court  of  sessions. 

SECTION  XXXVII. 
Duty  of  the  court  in  the  premises. 

SECTION  XXXVIII. 
Person  whose  license  revoked  not  to  receive  another  in  three  years. 


8 


CONTENTS. 


SECTION  XXXIX. 

Damage  sustained  by  reason  of  unlawful  sale  may  be  recovered — how  and 

by  whom. 

SECTION  XL. 

Duties  of  courts  and  grand  juries  as  to  offenses  under  this  act  and  for  adultera- 
tion, etc., — the  latter  made  misdemeanors^punishment. 

SECTION  XLI. 
If  proper  party  fails  to  prosecute,  any  person  may  in  his  name. 

SECTION  XLII. 

Incorporated  companies  carrying  persons  or  property  for  hire  not  to  employ 
drunkards  or  retain  them  in  their  employ  in  places  of  responsibility — 
penalty  therefor. 

SECTION  XLIII. 
Defendants  in  suits  on  bonds  not  to  be  allowed  jail  liberties. 

SECTION  XLIV. 
Revised  Statutes  and  acts  inconsistent  with  act  of  1857  repealed. 

SECTION  XLV. 

Ale  and  beer — provisions  of  excise  laws  applies  to — persons  other  than  hotel 
keepers  may  be  licensed  to  sell. 

SECTION  LXVI. 
Metropolitan  police  district  act  repealed — act  of  1857  extended. 

SECTION  XLVH. 

Sale  between  one  and  five  o'clock  a.  m.  prohibited,  and  business  places  to  be 
closed — also  on  Sundays  and  election  days — duty  of  officers  to  enforce — 
traveler's  rights  reserved. 

SECTION  XLVm. 
No  clerk  for  excise  boards  in  towns,  etc., — compensation  of  commissioners  in 
towns,  etc., — disposition  of  excise  moneys  in  towns — in  cities — books  of 
minutes  and  disposition  of. 

SECTION  XLIX. 

Conviction  for  any  violation  annuls  license — boards  of  excise  to  entertain  com- 
plaint— their  duties  and  powers. 


SECTION  L. 

The  law  of  1873  not  applicable  where  local  prohibition  prevails. 


CONTENTS. 


9 


SECTION  LI. 

Being  intoxicated  while  employed  upon  a  railroad,  etc.,  made  a  misdemeanor — 
fine  and  punishment — Penal  Code  enactment  on  subject — also  Code  of 
Criminal  Procedure — exclusive  jurisdiction  of  special  sessions  for  certain 
violations  of  the  excise  laws. 

SECTION  LII. 

Hotel  license  may  be  granted  without  license  to  sell  liquor — bond  required. 

SECTION  LIE 

If  excise  money  exceed  support  of  poor  it  may  be  applied  to  town  expenses. 

SECTION  LIV. 
Liquor  not  to  be  sold  where  court  is  being  held. 

SECTION  LV. 

Polling  places  in  cities  and  villages  not  to  be  where  liquor  is  sold — lager,  ale, 
beer,  wine  and  liquors  not  allowed  in  room  used  for  election. 

SECTION  LVI. 

Liquors  not  to  be  used  in  poor-houses,  jails,  prisons,  etc.,  as  a  beverage — medi- 
cal officer  may  prescribe  its  use. 

SECTION  LVII. 

Violation  of  foregoing  section  a  misdemeanor. 

SECTION  LVIII. 

Minors  under  14  not  to  be  allowed  in  saloons  and  certain  places  of  amusement 
where  liquors  are  sold  without  parent,  etc. , — violation  a  misdemeanor. 

SECTION  LIX. 

Persons  allowing  children  under  sixteen  to  play  games,  etc.,  where  liquor  sold 
guilty  of  misdemeanor — such  children  may  be  detained  as  witnesses. 

SECTION  LX. 

Children  not  allowed  in  dance-houses,  etc.,  without  parent,  etc. 
SECTION  LXI. 

Boys  under  sixteen  and  girls  under  fourteen  in  certain  company  and  places 
where  liquor  sold  liable  to  arrest  as  vagrants — may  be  committed,  etc. 

SECTION  LXII. 
Who  are  vagrants. 

SECTION  LXIII. 
Who  are  disorderly  persons. 

SECTION  LXIV. 
Voluntary  intoxication  no  excuse  for  crime. 


10 


CONTENTS. 


SECTION  LXV. 
Liability  of  physicians  practicing  while  intoxicated. 

SECTION  LXVL 
Certain  acts  of  intoxicated  physician  a  misdemeanor. 

SECTION  LXVH. 
Adulterations  of  liquors,  wines,  etc.,  a  misdemeanor. 

SECTION  LXVIII. 
Selling  certain  adulterated  articles  a  misdemeanor. 

SECTION  LXIX. 

Civil  damage  law — damages  to  person  or  property,  etc.,  by  reason  of  intoxica- 
tion recoverable — who  liable  and  who  may  recover. 

SECTION  LXX. 
Part  of  civil  damage  law — method  of  recovery. 

SECTION  LXX  I. 

Wrong  done  to  property,  rights  or  interests  of  another — person  injured,  or  his 
representative,  may  recover  damages  of  wrong-doer. 

SECTION  LXXII. 
City  and  town  of  Newburgh. 

SECTION  LXXIII. 
Orange  county. 

SECTION  LXXIV. 
City  of  Kingston. 

SECTION  LXXV. 
City  of  Poughkeepsie. 

SECTION  LXXVL 
City  of  Yonkers. 

SECTION  LXXVH. 
City  of  Lockport. 

SECTION  LXXVIII. 
City  of  Rochester. 

SECTION  LXXIX. 
City  of  Troy. 

SECTION  LXXX. 
City  of  Brooklyn. 


CONTENTS. 


11 


SECTION  LXXXI. 
City  of  Buffalo. 

SECTION  LXXXII. 
Town  of  Haverstraw. 

SECTION  LXXXIII. 
Village  of  Medina. 

SECTION  LXXXIV. 
Allegany  county. 

SECTION  LXXXV. 
Richmond  county. 

SECTION  LXXXVI. 
City  of  New  York. 

SECTION  LXXXVII. 
Laws  applicable  to  incorporated  villages  under  general  act — intoxicated  per- 
sons classed  as  disorderly — trustees  may  arrest. 


CHAPTER  II. 

GENERAL  SYNOPSIS  OF  THE  POWER,  DUTIES  AND  OBLIGA- 
TIONS OF  COMMISSIONERS  OF  EXCISE,  OVERSEERS  OF 
THE  POOR  AND  HOTEL  KEEPERS. 

SECTION  I 
Commissioners  of  excise. 

section  n. 

Overseers  of  the  poor. 

SECTION  III. 
Hotel  keepers. 


CHAPTER  III. 

THE    PRINCIPLES  OF   LAW  RELATING  TO  EXCISE  AND  MAT- 
TERS CONNECTED  THEREWITH. 

SECTION  I. 

Commissioners  of  excise — election,  appointment,  qualifications,  powers  and 

duties. 


12 


C<  >XTENTS. 


SECTION  II. 
Licenses. 

SECTION  III. 
Convictions  and  misdemeanors. 

SECTION  IV. 

Actions  for  penalties  by  overseers  of  the  poor — by  other  persons — how  brought ' 

and  maintained. 

SECTION  V. 
Actions  on  bonds. 

SECTION  VI. 
Indictments. 

SECTION  VII. 
Ale  and  beer. 

SECTION  VIII. 
Constitutionality  of  the  excise  law. 

SECTION  IX. 
Intoxication  and  its  effects  on  crime. 

SECTION  X. 
Hotels  and  their  keepers. 

SECTION  XI. 
Practice. 

SECTION  XII. 
Miscellaneous  provisions  and  effect  of  statutes. 


CHAPTER IV. 

CIVIL  DAMAGE  ACT. 

SECTION  I. 
Previous  statutes. 

SECTION  II. 
A  new  cause  of  action  created. 

SECTION  in. 
Jurisdiction  of  justices  of  the  peace. 


CONTENTS. 


13 


SECTION  IV. 
Constitutionality. 

SECTION  V. 
When  cause  of  action  will  not  exist  under. 

SECTION  VI. 
Joint  action  against  separate  vendors  will  not  lie. 

SECTION  VII. 
Several  injured,  recovery  proportionate. 

SECTION  VIII. 
Action  for  loss  of  means  of  support. 

SECTION  IX. 
Injury  to  person  or  property. 

SECTION  X. 
Liability  of  owner  of  premises. 

SECTION  XL 
License  to  sell  no  defense. 

SECTION  XII. 
Innocense  and  good  faith  no  defense. 

SECTION  XIII. 
Exemplary  damages. 

SECTION  XIV. 
Mitigation  of  damages. 


CHAPTER  V. 

INNKEEPERS. 
SECTION  I. 

Statutes  relating  to  the  rights,  duties  and  liabilities  as  well  as  for  the  protection 

of  innkeepers. 

SECTION  II. 
Hotels  and  hotel  keepers. 

SECTION  in. 
Rights  of  innkeepers. 


CONTENTS. 

SECTION  IV. 
Duties  of  innkeepers. 

SECTION  V. 
Lien  of  innkeepers. 

SECTION  VI. 
Guests. 

SECTION  VII. 
Liability  of  innkeepers  for  loss  of  money,  jewels,  etc 

SECTION  VIII. 
Liability  for  loss  of  guest's  baggage  and  effects  generally. 

SECTION  IX. 
Enforcement  of  the  liability. 


INTRODUCTION. 


On  the  passage  of  the  Revised  Statutes  in  1827  and  1828, 
the  legislature  re-enacted  and  adopted  an  excise  law,  most 
of  which  had  in  one  form  or  another  been  in  existence  from 
the  establishment  of  the  State  government. 

By  the  Revised  Statutes,  the  supervisor  and  two  justices 
of  the  peace  were  excise  commissioners  :  they  were  author- 
ized to  grant  hotel  and  grocers'  licenses  ;  the  fee  was  from 
live  to  thirty  dollars  ;  good  moral  character,  sufficient  ability 
and  ample  accommodations  were  required.  'i  he  bond  was 
for  $125,  that  the  person  licensed  would  not  suffer  his  house 
to  become  disorderly,  nor  allow  cock-fighting,  playing  with 
cards  or  dice,  nor  keep  a  gaming  table  of  any  description. 
For  a  failure  to  keep  the  necessary  requirements  of  a  hotel, 
he  forfeited  five  dollars,  to  be  recovered  by  the  overseer  of 
the  poor.  Then,  as  now,  he  was  to  keep  up  a  sign  under  a 
penalty,  and  no  person  who  did  not  have  a  hotel  license 
should  put  up  a  hotel  sign.  * 

No  persons  but  lodgers  or  travelers  were  to  be  trusted 
more  than  $1.25,  and  Securities  for  such  debts  were  void. 
Grocery  keepers  were  to  give  bonds  that  they  would  live 
up  to  the  law  requirements.  A  line  of  twenty-five  dollars 
for  selling  by  measure  without  a  license,  and  to  minors,  ser- 
vants, etc.  The  penalties  for  offenses  were  to  be  recovered 
by  the  overseer  of  the  poor,  unless  otherwise  provided. 
Breaches  of  bonds  were  to  be  prosecuted  as  now ;  records 
of  convictions  were  to  be  sent  to  the  court  of  sessions,  and 
they  to  revoke  a  license.  All  offenses  against  the  act  were 
made  misdemeanors. 

Methiglen,  currant  wine,  cherry  wine  and  cider  were  ex- 
empted from  the  operation  of  the  law.    The  amendments 


16 


INTRODUCTION. 


were  slight  until  1S45,  when  the  several  towns  of  the  State 
were  given  the  privilege  of  determining  by  ballot  whether 
license  should  be  granted  or  not  in  the  several  towns.  It 
was  slightly  amended  in  1846.  In  1854,  the  law  which  is 
now  in  existence  was  passed  in  substance.  The  right  was 
given  to  any  person  to  prosecute  for  the  penalty  if  the 
proper  parties  did  not  do  so,  but  the  prosecutor  was  com- 
pelled to  give  security  for  costs.  In  1857  the  former  stat- 
utes were  repealed,  and  chapter  628  of  that  year  enacted  in 
their  place.  This  act  created  the  county  commissioners  of 
excise,  which  existed  until  1874.  This  excise  law  has  been 
amended  by  adding  to,  or  taking  from,  until  it  has  become 
what  it  now  is,  as  fully  compiled  in  Chapter  I.  In  subse- 
quent chapters  the  decisions  of  the  courts  of  this  State 
upon  every  question  of  importance  are  fully  and  carefully 
examined,  discussed  and  cited,  to  which  is  added  a  chapter 
on  the  duties  and  liabilities  of  hotel  keepers  to  their  guests 
and  the  public  at  large,  together  with  the  special  statutes 
enacted  for  their  benefit. 


CHAPTER  I. 


STATUTES. 

Section  1.  At  the  annual  town  meetings  in  the  several 
towns  in  this  State,  held  next  after  the  passage  of  this  act, 
there  shall  be  elected,  in  the  same  manner  as  other  town 
officers  are  elected,  three  commissioners  of  excise,  who,  while 
acting  as  such  commissioners,  shall  not  hold  either  of  the 
offices  of  supervisor,  justice  of  the  peace,  or  town  clerk,  the 
office  of  president  or  trustee  of  any  incorporated  village,  and 
who  shall  compose  the  board  of  excise  of  their  respective 
towns,  and  discharge  the  duties  imposed  upon  the  super- 
visor and  justices  of  the  peace  of  towns,  and  the  president 
and  trustees  of  incorporated  villages  thereof,  by  chapter  175 
of  the  Laws  of  1870,  and  laws  amendatory  thereof  and  sup- 
plementary thereto  ;  and  shall  be  entitled  to  receive  com- 
pensation at  the  rate  of  three  dollars  per  day,  while  in 
session,  as  a  board  of  excise,  which  shall  be  a  town  charge ; 
except  in  the  counties  where  the  moneys  received  by  said 
board  are  paid  into  the  county  treasury  as  hereinafter  pro- 
vided, when  it  shall  be  a  county  charge.  The  commissioners 
first  elected  under  this  act  shall  be  classified  by  lot,  under 
the  superintendence  of  the  supervisor,  the  justice  of  the 
peace  having  the  shortest  time  to  serve,  and  the  town  clerk, 
or  a  majority  of  such  officers,  who  shall  meet  at  the  office 
of  the  town  clerk  of  their  respective  towns,  for  such  pur- 
pose, within  ten  days  after  such  town  meeting,  and  the  per- 

Note. — Tlie  numbers  given  at  the  bottom  of  some  of  the  sections  allude  to 
the  sections  of  the  Excise  Law  contained  in  Volume  1  of  the  Revised  Statutes, 
published  in  1829,  covering  substantially  the  same  grounds  as  the  sections  num- 
bered. Every  offense  under  those  statutes  was  made  a  misdemeanor  by  section 
25.  See  section  3,  chapter  3. 
2 


18 


EXCISE  AND  HOTEL  LAWS. 


sons  drawing  for  one,  two  and  three  years  shall  serve  for 
such  terms  respectively  ;  and  annually  thereafter  one  com- 
missioner of  excise  shall  be  elected  for  a  term  of  three  years. 
Vacancies  occurring  in  said  boards,  from  any  cause,  shall 
be  tilled  by  appointment  by  the  supervisor  and  justices  of 
the  peace  of  said  town,  or  a  majority  of  them,  until  the  next 
annual  town  meeting,  when  such  vacancy  shall  be  filled  by 
election.  (Section  1,  chapter  444,  Laws  of  1874.) 
*L 

§  2.  The  said  commissioners  shall  be  voted  for  upon  a 
separate  ballot,  which  shall  be  deposited  in  a  separate  box, 
marked  "excise,"  and  before  entering  upon  the  duties  of 
their  offices  shall  take  and  subscribe  the  constitutional  oath 
of  office  and  file  the  same  with  the  town  clerk,  and  shall 
execute  a  bond  to  the  supervisor  thereof,  to  be  approved  by 
him  in  double  the  amount  of  the  excise  moneys  of  the  pre- 
ceding year,  conditioned  for  paying  over  to  him  or  his  im- 
mediate successor  in  office,  within  thirty  days  after  the 
receipt  thereof,  all  moneys  received  by  them  as  such  excise 
commissioners.  Said  moneys  shall  be  disposed  of,as  directed 
by  the  town  board,  except  in  those  counties  where  the  sup- 
port of  the  poor  is  a  county  charge  where  such  excise  money 
shall  be  paid  into  the  county  treasury,  subject  to  the  control 
of  the  board  of  supervisors.    (Section  2,  chapter  444,  1874.) 

§  3.  Nothing  in  this  act  shall  affect  the  provisions  of  any 
special  act  in  so  far  as  the  same  provides  for  any  special  dis- 
position of  excise  moneys  or  fines.  (Section  3,  chapter  444, 
1874.) 

£  4.  The  mayor  of  each  of  the  cities,  except  in  the  cities 
of  N*ew  York,  Brooklyn  and  Poughkeepsie,  shall  appoint 
the  commissioners  of  excise  in  their  respective  cities  within 
ten  days  after  the  passage  of  this  act  ;  but  in  the  cities  of 
New  York,  Brooklyn  and  Poughkeepsie,  the  mayor  shall 
nominate  tin*'*'  good  and  responsible  oil izens  to  (lie  board  of 
aldermen  of  such  cities  respectively,  who  shall  confirm  or 
reject  such  nominations.  In  case  of  the  rejection  of  such 
nominees,  or  any  of  them,  the  mayor  shall  nominate  other 
prisons  as  aforesaid,  and  shall  continue  so  to  nominate, 
until  the  nominations  shall  be  confirmed.  The  present  com- 
missioners of  excise  for  the  metropolitan  district  and  the 


EXCISE  AND  HOTEL  LAWS. 


19 


•commissioners  for  the  counties  shall  continue  to  exercise 
the  duties  of  the  office  until  such  appointments,  or  some 
one  of  them,  shall  be  appointed  in  such  cities  respectively, 
.as  herein  provided.  Any  one  or  more  of  the  commissioners 
so  appointed  shall  have  the  power  to  act  as  a  board  of  excise 
for  the  city  in  which  he  shall  be  appointed,  until  the  others 
shall  be  duly  appointed.  Commissioners  of  excise  in  cities 
shall  hold  their  offices  for  three  years,  and  until  others  shall 
be  appointed  in  their  places,  and  shall  receive  a  salary  not 
to  exceed  $2,500  a  year  each,  to  be  fixed  by  the  mayor  and 
.common  council  of  their  respective  cities,  and  shall  be  paid 
-as  other  city  officers  are  paid.  (Section  2  of  chapter  175, 
1870,  as  amended  by  chapter  145,  1879.)  Provided,  that  in 
the  city  of  New  York  the  commissioners  of  excise  shall  re- 
ceive a  salary  not  to  exceed  $5,000  a  year  each,  to  be  fixed 
by  the  board  of  estimate  and  apportionment  of  said  city, 
who  shall  annually  fix  such  amount  as  may  be  necessary 
for  hire  of  employees,  rent  and  other  necessary  expenses  of 
said  board  of  commissioners,  which  amount  shall  be  paid 
out  of  the  moneys  received  for  licenses,  and  said  commis- 
sioners shall  receive  no  other  compensation  or  emolument 
for  services  as  commissioners  ;  and  provided  further,  that 
all  excise  moneys  hereafter  derived  from  licenses  for  the 
sale  of  intoxicating  liquors  by  said  commissioners,  except  as 
above  provided,  shall,  from  time  to  time  and  in  sums  accord- 
ing to  their  discretion,  be  appropriated  by  the  board  of  ap- 
portionment and  estimate  of  said  city  by  resolution  of  the 
said  board  to  whatever  benevolent,  charitable  or  humane 
institutions  may  seem  to  such  board  deserving  or  proper; 
but  no  such  resolutions  shall  be  valid  unless  adopted  by  the 
vote  of  a  majority  of  the  said  board  ;  and  the  comptroller 
of  said  city  is  hereby  authorized  and  directed  to  draw  his 
warrants  in  favor  of  the  corporations,  societies  or  charitable 
institutions  respectively  mentioned  in  such  resolutions  ac- 
cording to  the  tenor  thereof ;  and  the  chamberlain  of  said 
■city  shall  pay  such  warrants  out  of  the  said  moneys  received 
for  licenses,  which  are  hereby  directed  to  be  deposited  with 
and.  paid  over  to  him  within  thirty  days  after  it  is  received. 
(Chapter  549,  1873,  as  amended  by  chapter  642,  1874.)  On 
the  first  Monday  of  April  in  every  third  year  hereafter,  the 


20 


EXCISE  AND  HOTEL  LAWS. 


mayor  and  board  of  aldermen  shall  proceed  to  appoint,  in 
the  manner  above  described,  persons  qualified  as  aforesaid, 
to  be  such  commissioners  of  excise  in  their  respective  cities 
for  the  next  three  years,  commencing  on  the  first  day  of 
May  in  that  year,  and  shall,  from  time  to  time,  as  often  as 
vacancies  shall  occur,  appoint  persons  qualified  as  aforesaid 
to  fill  the  unexpired  term  of  any  commissioners  who  shall 
die,  resign,  remove  from  the  city,  or  be  removed  from  office. 
Such  commissioners  of  excise  in  cities  shall  be  removed  for 
any  neglect  or  malfeasance  in  office,  in  the  same  manner  as 
provided  by  law  for  the  removal  of  sheriffs.  (Section  2, 
chapter  175,  1870,  as  amended  by  chapter  145,  1879,  and  by 
chapter  549,  1873,  as  amended  by  chapter  642,  1874.) 

The  foregoing  section  4  is  a  compilation  of  several  acts 
and  their  amendments,  which,  without  their  union  as  above, 
would  not  be  clearly  understood. 

Section  2  of  chapter  175,  1870,  was  amended  in  1873  by 
chapter  549,  and  again  in  1874  by  charter  642,  but  in  a  con- 
fused way  by  amendment  of  amendments.  The  legislature, 
April  4,  1879,  probably  overlooking  the  amendments  of  1873 
and  1874,  went  back  to  the  original  act  of  1870  and  amended 
it  without  regard  to  the  former  amendments  ;  subsequently 
discovering  the  error,  it  enacted,  June  4,  1879,  a  declaratory 
act,  which  we  append  as  section  5,  which  has  relation  solely 
to  the  above-mentioned  acts  and  their  amendments.  The 
amendments  of  1873  and  1874  introduced  a  provision  having 
reference  solely  to  the  city  of  New  York,  commencing  with 
the  word  "provided"  and  ending  with  the  words  "within 
thirty  days  after  it  is  received,"  while  the  amendment 
of  1879  merely  added  "  Poughkeepsie "  to  the  list  of  ex- 
cepted cities. 

Declaratory  Act. 

§  5.  Nothing  contained  in  chapter  145  of  the  Laws  of  1879, 
entitled  '  'An  act  to  further  amend  chapter  175  of  the  Laws 
of  1870,  entitled  'An  act  regulating  the  sale  of  intoxicating 
liquors,'  "  shall  be  construed  to  affect  the  provisions  of 
chapter  642  of  the  Laws  of  1874,  entitled  "An  act  declara- 
tory of  and  to  amend  chapter  549  of  the  Laws  of  1873,  en- 
titled 'An  act  to  amend  an  act  entitled  'An  act  regulating  the 


EXCISE  AND  HOTEL  LAWS. 


21 


sale  of  intoxicating  liquors,'  passed  April  11,  1870,'  and 
the  act  entitled  'An  act  to  suppress  intemperance  and  to 
regulate  the  sale  of  intoxicating  liquors,'  passed  April  16, 
1857.'  "    Passed  June  23,  1874.    (Chapter  472,  1879.) 

By  chapter  377  of  the  Laws  of  1880,  entitled  "An  act  in 
relation  to  the  government  of  the  city  of  Brooklyn,"  the 
method  of  appointing  excise  commissioners,  or,  "commis- 
sioners of  excise,"  as  they  are  there  called,  also  the  com- 
missioners of  police  and  excise,  is  pointed  out.  (See 
section  80,  post.) 

§  6.  The  boards  of  commissioners  of  excise  in  the  cities 
of  this  State,  having  a  population  of  over  300,000  inhabit- 
ants, shall,  if  all  other  requirements  of  the  law  have  been 
complied  with,  have  power  to  grant  license  to  sell  strong  or 
spirituous  liquors,  ale,  wine  or  beer,  to  be  drank  on  the 
premises,  to  be  named  in  the  application  for  such  license, 
to  any  person  or  persons  having  a  good  moral  character, 
whether  or  not  they  propose  to  keep  an  inn,  tavern  or  hotel, 
provided  that  no  such  license  shall  be  granted  unless  the 
said  commissioners  shall  be  satisfied,  upon  examination, 
that  the  applicant  therefor  is  a  person  of  good  moral  char- 
acter, and  that  a  license  may  properly  be  granted  for  such 
sale  in  the  place  proposed.    (Section  1,  chapter  340,  1883.) 

§  7.  Any  such  board  shall  have,  at  all  times,  discretionary 
power  to  permit  any  person  or  persons,  to  whom  a  license 
may  have  been  granted  in  respect  of  any  specified  premises, 
to  remove  to  any  other  place  within  jurisdiction  of  the  same 
board  during  the  period  covered  by  such  license,  and  there 
to  continue  the  conduct  of  business  under  such  license,  in 
the  same  manner  as  if  no  removal  had  been  made ;  pro- 
vided always,  that  such  discretionary  power  shall  not  be 
exercised  until  and  unless  all  the  requirements  of  law  to  be 
observed  upon  the  granting  of  an  original  license  shall,  upon 
said  application  for  removal,  be  complied  with  and  fulfilled 
in  every  respect.    (Section  2,  chapter  340,  1883.) 

§  8.  No  person  or  persons  having  a  license  under  this 
act,  nor  any  assistant,  agent,  employee  or  servant  of  any 
such  person  or  person  so  licensed,  shall  be  arrested  for  any 
alleged  violation  of  any  provision  of  any  excise  law  by 
any  peace  officer  or  other  person,  unless  a  warrant  therefor, 


22 


EXCISE  AND  HOTEL  LAWS. 


based  on  affidavit,  shall  have  first  duly  issued  according  to> 
law,  except  and  provided  that  in  case  of  any  violation  of 
any  provision  of  any  excise  law  between  the  hour  of  one 
o'clock  Sunday  morning  and  the  hour  of  twelve  o'clock 
Sunday  night,  in  presence  of  any  officer  or  person  author- 
ized to  make  arrests  for  violation  of  law,  such  officer  or 
person  may  forthwith,  and  without  warrant,  make  arrest 
of  the  person  or  persons  so  violating  any  provision  of  any 
excise  law.  Any  officer  or  person  authorized  to  make  ar- 
rests for  violation  of  law  may  arrest,  without  warrant,  any 
person  who,  in  the  presence  of  such  officer  or  other  person 
authorized  to  make  arrests,  may  be  engaged  in  the  sale  of 
any  intoxicating  liquor  without  a  license.  (Section  3,  chap- 
ter 340,  1883.) 

§  9.  No  city  of  this  State  having  a  population  of  more 
than  300,000  inhabitants,  shall  hereafter  be  subject  to,  or  be 
embraced  within,  any  provision  of  the  sixth  section  of  the 
act,  chapter  628  of  the  laws  of  1857,  entitled  "An  act  to 
suppress  intemperance  and  to  regulate  the  sale  of  intoxi- 
cating liquors,"  passed  April  16,  1857.  (Section  4,  chapter 
340,  1883. 

§  10.  Any  person  who  shall,  without  a  license,  sell  or 
give  away  any  strong  or  spirituous  liquors,  ale,  wine  or 
beer,  to  be  drank  upon  the  premises,  shall  be  guilty  of  a 
misdemeanor  ;  and  nothing  in  this  act  contained  shall  alter 
or  affect  the  provisions  of  existing  lawsr  touching  the  sale 
or  giving  away  of  intoxicating  liquors  to  be  drank  urjon  the- 
premises,  or  the  prohibition  thereof  in  the  cases  mentioned 
in  said  laws,  and  the  penalties  prescribed  therefor,  except 
as  provided  in  section  four  of  this  act,  and  such  provisions  of 
existing  laws  as  are  applicable  to  persons  who  might  thereby 
be  licensed  to  sell  intoxicating  liquors  to  be  drank  upon  the 
premises  shall  be  applicable  to  persons  who  may  be  licensed 
under  this  act,  except  as  such  laws  are  modified  by  the 
terms  of  this  act,    (Section  5,  chapter  340,  1883.) 

The  last  five  sections  constitute  chapter  340  of  the  laws 
of  1883,  and  are  applicable  only  to  the  cities  of  New  York 
and  Brooklyn,  as  no  city  beside  them  in  this  State  has,  or 
is  likely  to  have,  more  than  300,000  inhabitants  for  some 
years  to  come. 


EXCISE  AND  HOTEL  LAWS. 


23 


The  enacting  clause  of  said  act  reads  as  follows :  "An  act 
to  regulate  the  sale  of  intoxicating  liquors  in  cities  having 
a  population  of  over  300, 000  inhabitants,"  passed  April  30, 
1883. 

§  11.  The  commissioners  of  excise  shall  meet  in 
their  respective  cities,  villages  and  towns,  on  the  first  Mon- 
day of  May  in  each  year,  for  the  jjurpose  of  granting  li- 
censes as  provided  by  law,  and  at  no  other  time  for  that 
purpose,  except  upon  application  for  license  made  in  good 
faith,  in  any  town  or  village,  and  in  such  case  not  oftener 
than  once  in  each  month.  In  cities  they  shall  meet  on  the 
first  Monday  of  each  month,  and  as  often  as  they  shall 
deem  necessary.  All  licenses  hereafter  granted  shall  expire 
on  the  first  Monday  of  May  succeeding  the  date  of  such 
granting,  except  in  the  cities  of  New  York,  Brooklyn  and 
Rochester,  and  all  applicants  where  such  license  is  granted 
for  a  period  of  less  than  one  year,  shall  pay  a  pro  rata 
amount  of  the  license  fee  established  for  their  place  of  busi- 
ness by  the  commissioners  of  their  respective  cities,  towns 
and  villages  ;  and  in  said  cities  of  New  York,  Brooklyn  and 
Rochester,  all  such  licenses  shall  expire  at  the  end  of  one 
year  from  the  time  they  shall  be  granted.  (Section  3,  of 
chapter  175,  1870,  as  amended  by  chapters  164  and  466  of 
the  Laws  of  1881,  and  by  chapter  126  of  the  laws  of  1882.) 

The  law  of  1870— as  it  stood  until  1881— left  a  time  when 
there  might  be  no  license  in  force.  It  provided  that  licenses 
should  be  for  one  year  from  the  first  Monday  of  May. 
There  is,  however,  more  than  one  year,  at  times,  from  the 
first  Monday  of  May  to  the  first  Monday  of  May  in  the 
succeeding  year.  Chapter  164  of  the  Laws  of  1881,  rectified, 
this  defect  by  omitting  to  limit  the  license  to  one  year  ;  but 
by  chapter  466  of  the  same  year,  the  length  of  a  license 
was  again  limited  to  one  year  in  the  cities  of  New  York  and 
Brooklyn  ;  and  by  chapter  126  of  the  Laws  of  1882,  the 
legislature  added  Rochester  to  New  York  and  Brooklyn. 
It  would  be  interesting  to  know  why  this  is  so.  It  took 
four  chapters  to  fix  a  time  for  the  meeting  of  the  board  and 
the  duration  of  license,  and  it  seems  there  should  be  one 
more  amendment  so  there  will  not  be  a  time  of  no  license, 
or  the  hotel  and  saloon  keepers  of  said  cities  will  be  com- 


24 


EXCISE  AND  HOTEL  LAWS. 


pelled  to  take  out  a  six-day  license  to  avoid  being  law 
breakers,  where  one  year  will  not  extend  from  the  first 
Monday  of  May  in  one  year  to  the  first  Monday  of  May  in 
the  succeeding  year,  and  thus  necessitate  another  meeting 
of  the  board  for  that  purpose.  Section  four  of  the  act  of 
1857,  contemplating  this,  kept  the  license  in  force  for  ten 
days  in  all  parts  of  the  State,  except  New  York  city,  and 
there  for  fifty  days. 

§  12.  The  board  of  excise  in  any  city,  town  or  village  shall 
have  the  power  to  giant  license  to  any  person  or  persons  of 
good  moral  character,  who  shall  be  approved  by  them,  per- 
mitting him  or  them  to  sell  and  dispose  of,  at  any  one  named 
place  within  such  city,  town  or  village,  strong  or  spirituous 
liquors,  wines,  ale  and  beer  in  quantities  less  than  five  gal- 
lons at  a  time  upon  receiving  a  license  fee,  to  be  fixed  in 
their  discretion,  and  which  shall  not  be  less  than  thirty  dol- 
lars, nor  more  than  $150,  in  any  town  or  village,  and  not 
less  than  thirty  dollars,  nor  more  than  $250,  in  any  city. 
Such  licenses  shall  only  be  granted  on  written  application 
to  the  said  board,  signed  by  the  applicant  or  applicants, 
specifying  the  place  for  which  license  is  asked,  and  the 
name  or  names  of  the  applicant  or  applicants,  and  of  every 
person  interested  or  to  be  interested  in  the  business  to  au- 
thorize which  the  license  shall  be  used  ;  and  the  license  shall 
be  kept  posted,  by  the  person  or  persons  licensed,  in  a  con- 
spicuous position  in  the  room  or  place  where  his  or  their 
sales  are  made,  and  shall  be  exhibited  at  all  times  by  the 
person  or  persons  so  licensed,  and  by  all  persons  acting 
under  such  license,  on  demand,  to  every  sheriff,  constable 
or  officer,  or  member  of  police.  Any  omission  so  to  display 
and  exhibit  such  certificate  shall  be  presumptive  evidence 
that  any  person  or  persons  so  omitting  to  display  and  ex- 
hibit the  same  has  and  have  no  license.  The  said  board  of 
excise  shall  keep  a  complete  record  of  the  names  of  all  per- 
sons licensed,  as  herein  provided,  with  a  statement  of  the 
place  licensed,  and  license  fee  imposed  and  paid  in  each 
case,  which  record  they  shall  at  all  times  permit  to  be  seen 
in  a  convenient  place  at  their  principal  office  in  any  city,  or 
at  the  clerk's  office  in  any  town  or  village.  Persons  not 
licensed  may  keep,  and,  in  quantities  not  less  than  five  gal- 


EXCISE  AND  HOTEL  LAWS. 


25 


Ions  at  a  time,  sell  and  dispose  of  strong  and  spirituous 
liquors,  wines,  ale  and  beer,  provided  that  no  part  thereof 
shall  be  drunk  or  used  in  the  building,  garden  or  inclosure 
communicating  with,  or  in  any  public  street  or  place  con- 
tiguous to,  the  building  in  which  the  same  be  so  kept,  dis- 
posed of,  or  sold.  (Section  4.  chapter  175  of  the  Laws  of 
1870,  as  amended  by  section  2,  chapter  549,  1873.) 

At  the  same  session  of  the  legislature  that  the  above  sec- 
tion was  amended  (1873)  an  act  was  passed  (chapter  249) 
making  the  trustees  of  villages  the  commissioners  of  excise 
in  such  villages  ;  therefore  the  above  section  alludes  to  vil- 
lage boards. 

Chapter  249,  1873,  was  superceded,  as  we  view  it,  by  the 
adoption  of  section  1,  chapter  444,  of  the  Laws  of  1874. 
(See  section  1,  ante,  page  1.) 

The  following  four  sections,  which  are  sections  2,  3,  4  and 
5,  of  chapter  628  of  the  Laws  of  1857,  are  inserted  because 
it  is  probable  that  some  minor  portions  of  each  are  not 
entirely  superceded  by  the  laws  of  1870  and  1873.  The  part 
of  section  2  of  that  act  that  seems  not  to  be  ''inconsistent  or 
in  conflict' '  with  any  other  law  passed  subsequently,  that  is 
from  the  first  period {.) to  and  including  the  word  "garden." 
The  first  part  of  the  section  is  disposed  of  by  being  in  con- 
flict with  chapter  126  of  the  Laws  of  1882  (ante,  section  11), 
while  the  latter  part  of  the  section  is  superceded  by  section 
2,  chapter  549,  1873  {ante,  section  12) : 

Section  3  of  said  act  of  1857,  seems  so  far  to  be  in  force  as 
to  require  the  commissioners  to  "keep  a  book  of  minutes  of 
all  their  proceedings,  and  every  resolution  passed  by  them, 
to  be  verified  by  their  signatures,"  while  the  balance  of  the 
section  would  probably  be  held  to  be  "inconsistent  with" 
section  4  of  chapter  175,  1870,  as  amended  by  section  2, 
chapter  549,  1873.    (Ante,  section  12.) 

Section  4  of  said  act  is  also  probably  in  force,  so  far  that 
the  licenses  shall  be  signed  by  the  commissioners,  and  that 
no  license  shall  be  issued  until  all  preliminaries  are  complied 
with,  while  the  balance  is  also  disposed  of  by  the  act  of  1882. 

Section  5  of  said  act,  down  to  the  first  period  (.),  is  re- 
pealed by  a  contrary  statute,  which  declares  that  the  com- 
missioners shall  not  keep  a  clerk.    (  See  chapter  175,  1870; 


26 


EXCISE  ANT)  HOTEL  LAWS. 


post  section  48. )  While  the  next  sentence  directs  minutes 
to  be  kept,  in  which  all  names  of  applicants,  a  list  of  licenses 
granted,  and  the  names  of  the  sureties  on  the  bonds,  shall 
be  given.  This  will  necessitate  making  a  secretary  of  one  of 
the  board. 

Sections  3  and  5  seem  to  be  so  far  "inconsistent"  with 
each  other  as  to  cause  the  commissioners  to  keep  two  books 
of  minutes,  one  to  be  filed  with  the  town  clerk,  and  the  other 
with  the  county  clerk.  These  sections,  however,  were  in 
relation  to  the  action  of  commissioners  of  excise  of  counties, 
who  have  been  displaced  by  commissioners  of  towns,  and  it 
is  a  matter  of  some  doubt  as  to  how  much,  and  what  portion, 
of  said  five  sections  are  still  applicable  under  the  statute  as  it 
now  stands. 

Section  0  of  the  act  of  1857,  directs  the  commissioners  to 
be  satisfied  of  the  good  moral  character  of  the  applicant, 
while  section  2  of  chapter  549,  1873,  as  amended,  does  not 
give  them  in  terms  that  discretion  ;  but  as  the  two  sections 
do  not  seem  to  be  entirely  inconsistent  with  each  other,  we 
assume,  in  the  absence  of  any  decision  upon  the  subject, 
that  the  two  clauses  should  be  construed  together.  There 
are  several  parellel  propositions  in  these  and  other  sections, 
with  subsequent  amendments,  and  it  is  the  safest  way  for 
the  practitioner  or  commissioners  to  assume  them  to  be  each 
in  force  and  thus  keep  within  the  letter  of  the  law  until  the 
courts  shall  decide  upon  the  spirit,  as  they  have  in  some 
particulars,  as  will  appear  hereafter. 

§  J 3.  The  commissioners  of  excise  shall  meet  in  their  re- 
spective counties  at  the  place  aforesaid,  on  the  third  Tues- 
day of  May  in  each  year,  and  on  such  other  days  as  a 
majority  of  the  commissioners  shall  appoint,  not  exceeding 
ten  days  in  any  one  year,  and,  in  the  city  of  New  York,  not 
exceeding  fifty  days,  for  the  purpose  of  granting  licenses 
as  hereinafter  prescribed.  They  shall  have  power  to  grant 
licenses  to  keepers  of  inns,  taverns  or  hotels,  being  resi- 
dents of  the  town  or  city  where  such  inn,  tavern  or  hotel  is 
proposed  to  be  kept,  to  sell  strong  and  spirituous  liquors 
and  wines  to  be  drank  in  their  houses  respectively  ;  and  to 
store  keepers  being  such  residents,  a  license  to  sell  such 
liquors  and  wines  in  quantities  less  than  five  gallons,  but  not 


EXCISE  AND  HOTEL  LAWS. 


27 


to  be  drank  in  their  shops,  houses,  out-houses,  yards  or  gar- 
dens, and  they  shall  have  power  to  determine  the  sum  to  be 
paid  for  a  license  by  each  person  applying,  which  sum  shall  be 
as  follows  :  In  towns  and  incorporated  villages  not  less  than 
thirty  dollars  nor  more  than  $100,  and  in  cities  not  less 
than  thirty  dollars  nor  more  than  $250.  No  license  shall  be 
granted  to  any  person  or  lirm  to  sell  in  more  than  one  place. 
(Section  2,  chapter  628,  1857.) 

*  2,  4. 

Time  of  meeting  changed  by  section  11. 

§  14.  They  shall  keep  a  book  of  minutes  of  all  their  pro- 
ceedings in  which  shall  be  entered  every  resolution  passed 
by  them  granting  a  license  to  any  person,  with  the  sum  re- 
quired to  be  paid,  which  minutes  shall  be  verified  by  their 
signatures  and  filed  with  the  town  clerk  of  the  town  for 
which  such  license  shall  be  granted,  and  in  the  several 
cities  of  the  State,  with  the  city  clerk,  within  eight  days 
thereafter.    (Section  3,  id.) 

*  3. 

§  15.  All  licenses  shall  be  signed  by  the  commissioners 
granting  the  same.  They  shall  not  be  issued  until  the  re- 
quirements fixed  by  the  board  shall  have  been  complied 
with  [when  issued  they  shall  be  in  force,  unless  revoked, 
until  ten  days  after  the  third  Tuesday  in  May  next  succeed- 
ing the  granting  of  such  license,  and,  in  the  city  of  New 
York,  until  fifty  days  thereafter.]    (Section  4,  id.) 

*3. 

The  portion  of  above  section  in  brackets  has  been  super- 
ceded. 

§  16.  Each  of  said  boards  of  commissioners  of  excise, 
shall  have  the  right  to  appoint  a  clerk  for  the  time  they 
may  be  actually  in  session,  in  accordance  with  the  provisions 
of  this  act,  such  clerk  to  receive  the  same  compensation  as 
is  allowed  by  this  act  to  each  of  the  commissioners.  They 
shall  keep  a  book  of  minutes  of  proceedings,  on  which  shall 
be  entered  the  names  of  all  applicants  for  license,  and  they 
shall  also  enter  on  said  book  a  list  of  all  licenses  granted, 
with  the  names  of  the  parties  to  whom  the  same  are  granted, 
and  the  names  of  the  securities  to  the  bond  required  in  each 
case    The  said  book  of  minutes  shall  be  deposited  in  the 


28 


EXCISE  AND  HOTEL  LAWS 


office  of  the  county  clerk.  No  fee  or  reward  shall  be  taken 
by  any  board  of  excise,  or  by  any  member  thereof,  or  by 
any  clerk  thereof,  for  any  license  to  keep  an  inn,  tavern  or 
hotel,  or  to  sell  strong  or  spirituous  liquors,  or  for  any  ser- 
vice required  of  such  board  ;  nor  shall  any  compensation 
be  retained  by  any  such  board,  or  by  any  member  thereof, 
or  by  any  clerk  thereof,  out  of  the  excise  money,  but  the 
whole  amount  thereof  shall  be  paid  over  to  the  county 
treasurers  for  the  use  of  the  \)oor  in  the  several  counties  ; 
but  the  persons  composing  such  board  of  excise  shall  be 
entitled  each  to  receive  the  sum  of  three  dollars  per  day  for 
services  actually  performed,  to  be  allowed  and  paid  in  like 
manner  as  other  county  charges,  and  no  other  or  greater 
compensation  shall  be  allowed.  The  expenses  of  procuring 
necessary  books  for  minutes,  and  necessary  blanks,  when 
actually  incurred,  shall  be  audited  and  paid  in  like  manner 
as  other  county  charges.    (Section  5,  id.) 

The  light  to  appoint  a  clerk  is  repealed..  (See  section  48.) 

We  have  heretofore  alluded  to  section  6  of  the  laws  of 
1857,  which  follows  as  our  next  section,  and  which  has  been 
held  by  the  Court  of  Appeals  as  still  in  force  in  some  par- 
ticulars, but  not  in  others,  without  giving  very  lucid  reasons 
why  one  part  is  not  still  in  existence  as  well  as  another. 
As  it  is  our  purpose  to  present  the  authorities  particularly 
applicable  to  each  section  after  the  statutes  have  been  given, 
we  shall  not  here  give  citations,  but  simply  such  of  our  con- 
clusions as  we  think  will  assist  in  understanding  the  some- 
what mixed  legislation  which  we  find  scattered  through  the 
statutes  of  the  last  twenty-five  years ;  for  instance,  it  is 
held  that  the  petition  of  twenty  freeholders  is  not  necessary 
in  an  application  for  a  license,  under  the  statute,  as  amended 
in  lb73  (ante,  section  12),  because  the  said  statute  does  not 
name  that  as  one  of  the  preliminary  requirements ;  but  it 
is  also  held  by  the  same  high  authority,  that  section  6  of 
the  law  of  1857  is  still  in  force,  to  the  extent  that  such  a 
license  as  is  mentioned  in  section  2  of  chapter  549,  1873, 
means  hotel  licenses,  and  that  the  accommodations  enumer- 
ated in  section  6  of  the  law  of  1857,  must  also  be  held  as 
contemplated  by  the  act  of  1870,  as  amended  in  1873  (ante, 
section  12).    The  judge  writing  the  opinion  in  the  case  al- 


EXCISE  AND  HOTEL  LAWS. 


29 


hided  to,  seemed  to  see  harmony  possible  in  the  two  acts  of 
1857  and  1870  and  their  amendments,  except  as  to  the  peti- 
tion of  twenty  freeholders.  We  hope  our  readers  will  be 
equally  as  happy  in  their  examinations.  We  are  of  the 
opinion,  however,  that  the  ordinary  mind  will  not  see  this 
as  clearly  as  the  judicial,  and  therefore  venture  the  remark 
that,  as  the  excise  law  affects  the  people  as  much  or  more 
than  any  law  upon  our  statute  books,  that  it  is  but  justice 
to  them  that  it  should  be  made  as  plain  as  possible,  to  the 
intent  that  the  people  should  be  able  to  understand  and 
profit  by  it.  We  will  endeavor  to  give  the  judicial  construc- 
tion of  these  several  statutes  in  their  proper  plaoe.  The 
act  of  1857  being  still  in  force,  we  will  give  the  balance  of 
that  act  in  this  connection,  which,  at  the  time  of  its  pass- 
age, with  the  exception  of  some  local  statutes,  comprised 
the  complete  excise  law  of  this  State,  and  in  1870  the  statute 
of  1857,  as  engrafted  upon  the  law  of  1870,  became  the  ex- 
cise law  for  the  whole  State.  In  now  giving  the  balance 
of  that  act,  it  will  necessitate  the  postponement  of  the 
several  subsequent  enactments  until  the  balance  of  the  act 
of  1857  if  given.  Were  it  possible  to  so  weave  the  several 
acts  together  as  to  form  an  orderly  and  reliable  law,  cover- 
ing the  whole  ground  of  excise  legislation,  we  should  be 
glad  to  do  so  ;  but  it  is  impossible,  and,  therefore,  the  neces- 
sary incongruity  of  arrangement  must  be  accounted  for  in 
the  disorderly  state  of  our  statutes  as  we  find  them. 

§  17.  License  shall  not  be  granted  to  any  person  to  sell 
strong  and  spirituous  liquors  and  wines  to  be  drank  on  the 
premises  of  the  person  licensed,  unless  such  person  proposes 
to  keep  an  inn,  tavern  or  hotel,  nor  unless  the  commissioners 
are  satisfied  that  the  applicant  is  of  good  moral  character, 
that  he  has  sufficient  ability  to  keep  an  inn,  tavern  or  hotel, 
and  the  necessary  accommodations  to  entertain  travelers,  and 
that  an  inn,  tavern  or  hotel  is  required  for  the  actual  accom- 
modation of  travelers,  at  the  place  where  such  applicant 
resides  or  proposes  to  keep  the  same ;  all  which  shall  be 
expressly  stated  in  such  license.  And  no  such  license  shall 
be  granted  except  on  the  petition  of  not  less  than  twenty  re- 
spectable freeholders  of  this  State  residing  in  the  election  dis- 
trict where  such  inn,  tavern  or  hotel  is  proposed  to  be  kept, 


30 


EXCISE  AND  HOTEL  LAWS. 


by  them  duly  signed  and  verified  by  the  oath  of  a  subscrib- 
ing witness,  and  not  then  unless,  in  the  opinion  of  the  commis- 
sioners, such  inn,  tavern  or  hotel  is  necessary  or  proper;  and 
not  more  than  one  license  shall  be  granted  on  the  memorial 
of  the  same  petitioners  or  any  of  them.  All  petitions  upon 
which  such  licenses  shall  be  granted  shall  be  tiled  with  the 
county  clerk  within  eight  days.  And  in  case  the  commis- 
sioners shall  grant  any  license  contrary  to  the  provisions 
of  this  act,  they  shall  be  deemed  guilty  of  a  misdemeanor. 
(Section  6,  chapter  628,  1857.) 
*6 

The  petition  of  twenty  freeholders  being  no  longer  neces- 
sary their  petitions  need  not  be  filed  as  stated  above. 

§  18.  Nor  shall  such  license  to  keep  an  inn,  tavern  or  hotel 
be  granted  until  the  applicant  shall  have  executed  and  de- 
livered to  the  board  of  commissioners  of  excise  herein  pro- 
vided a  bond  to  the  people  of  this  State,  in  the  penal  sum  of 
$250,  with  sufficient  sureties,  who  shall  duly  justify  in  the 
sum  of  $500,  to  be  approved  by  the  board  of  commissioners 
with  a  condition  that  such  applicant,  during  the  time  that 
lie  shall  keep  any  inn,  tavern  or  hotel,  will  not  sulfer  it  to 
be  disorderly,  or  suffer  any  gambling,  or  keep  a  gambling 
table  of  any  description,  within  the  inn,  tavern  or  hotel,  so 
kept  by  him,  or  in  any  out-house,  yard  or  garden  belonging 
thereto.    (Section  7,  id.) 

*7. 

§  19.  Every  keeper  of  an  inn,  tavern  or  hotel,  in  any  of 
the  towns  or  villages  of  this  State,  shall  keep  in  his  house 
at  least  three  spare  beds  for  his  guests,  with  good  and  suffi- 
cient bedding,  and  shall  provide  and  keep  good  and  sufficient 
stabling,  and  provender  of  hay  in  the  winter,  and  hay  or 
pasturage  in  the  summer,  and  grain  for  four  horses  or  other 
cattle  more  than  his  own  stock,  for  the  accommodation  of 
travelers ;  and  every  keeper  of  an  inn,  tavern  or  hotel  in  the 
cities  of  this  State  shall  keep  at  least  three  spare  beds,  and 
the  necessary  bedding,  for  the  accommodation  of  travelers. 
For  every  neglect  or  default  in  having  either  of  the  articles 
herein  required,  such  keeper  shall  forfeit  ten  dollars,  to  be 
recovered  by  the  overseers  of  the  poor  for  the  use  of  the 
poor.    (Section  8,  id.) 

*8. 


EXCISE  AND  HOTEL  LAWS. 


The  above  section  is  in  force,  except  in  the  excepted  cities 
of  New  York  and  Brooklyn.    (See  ante,  section  6.) 

§  20.  Every  inn,  tavern  or  hotel  keeper  licensed  under  the 
provisions  of  this  act  shall,  within  thirty  days  after  obtain- 
ing his  license,  put  up  a  proper  sign  on  or  adjacent  to  the 
front  of  his  house,  with  his  name  thereon,  indicating  that 
he  keeps  an  inn,  tavern  or  hotel ;  and  he  shall  keep  up  such 
sign  during  the  time  that  he  keeps  an  inn,  tavern  or  hotel. 
For  every  month's  neglect  to  keep  up  such  sign  he  shall 
forfeit  ten  dollars.    (Section  9,  id.) 

*9. 

Some  peculiar  questions  may  arise  under  this  section,  to 
which  we  will  call  attention  in  future. 

>J  21.  No  inn,  tavern  or  hotel  keeper,  who  shall  trust  any 
person  other  than  those  who  may  be  lodgers  in  his  house, 
for  any  sort  of  strong  or  spirituous  liquors  or  wines,  shall 
be  capable  of  recovering  the  same  by  any  suit.  All  securi- 
ties given  for  such  debts  shall  be  void  ;  and  the  inn,  tavern 
or  hotel  keeper  taking  such  securities,  with  intent  to  evade 
this  provision,  shall  forfeit  double  the  sum  intended  to  be 
secured  thereby.    (Section  10,  id.) 

*  11,  18. 

^  22.  In  all  licenses  that  may  be  granted  (excepting  to 
inn,  tavern  or  hotel  keepers)  to  sell  strong  or  spirituous 
liquors  or  wines,  in  quantities  less  than  live  gallons,  there 
shall  be  inserted  an  express  declaration  that  such  license 
shall  not  be  deemed  to  authorize  the  sale  of  any  strong  or 
spirituous  liquor,  or  wine,  to  be  drank  in  the  house  or  shop 
of  the  person  receiving  such  license,  or  in  any  out-house, 
yard  or  garden  appertaining  thereto,  or  connected  therewith. 
(Section  11,  id.) 

*12. 

For  ale  and  beer  licenses  see  section  45. 

£  28.  Such  licenses  shall  not  be  granted,  unless  the  com- 
missioners are  satisfied  that  the  applicant  is  of  good  moral 
character,  nor  until  such  applicant  shall  have  executed  a 
bond  to  the  x^eople  of  this  State  in  the  penal  sum  of  8500, 
with  sufficient  sureties,  who  shall  duly  justify  in  the  sum 
of  *1,000,  to  be  approved  by  the  commissioners,  and  to  be 
delivered  to  the  commissioners,  conditioned  that  during  the 


32 


EXCISE  AND  HOTEL  LAWS. 


term  for  which  his  license  shall  be  granted  he  will  not  suffer 
his  place  of  business  to  become  disorderly  ;  that  he  will  not 
sell  or  suffer  to  be  sold,  any  strong  or  spirituous  liquors  or 
wines  to  be  drank  in  his  shop  or  house,  or  in  any  out-house, 
yard  or  garden  appertaining  thereto  ;  and  that  he  will  not 
suffer  any  such  liquor,  sold  by  virtue  of  such  license,  to  be 
drank  in  his  shop  or  house,  or  in  any  out-house,  yard  or 
garden,  belonging  thereto  ;  and  whenever  any  person  is  seen 
to  drink  in  such  shoj)  or  house,  out-house,  yard  or  garden, 
belonging  thereto,  any  spirituous  liquors  or  wines,  forbidden 
to  be  drank  therein,  it  shall  be  prima  facie  evidence  that 
such  spirituous  liquor  or  wines  were  sold  by  the  occupant 
of  such  premises,  or  his  agent,  with  the  intent  that  the  same 
should  be  drank  therein.  On  any  trial  for  the  offense  last 
aforesaid,  such  occupant  or  agent  may  be  allowed  to  testify 
respecting  such  sale.    (Section  12,  id.) 

*  12,  13. 

A  portion  of  the  above  section  has  been  declared  uncon- 
stitutional.   (See  post,  chapter  3,  section  8.) 

§  24.  Whoever  shall  sell  any  strong  or  spirituous  liquors 
or  wines,  in  quantities  less  than  five  gallons  at  a  time,  with- 
out having  a  license  therefor,  granted  as  herein  provided, 
shall  forfeit  fifty  dollars  for  each  offense.    (Section  13,  id.) 

*  15. 

§  25.  Whoever  shall  sell  any  strong  or  spirituous  liquors 
or  wines,  to  be  drank  in  his  house  or  shop,  or  any  out-house, 
yard  or  garden  appertaining  thereto,  or  shall  suffer  or  per- 
mit any  such  liquors  or  wines  sold  by  him,  or  under  his 
direction  or  authority,  to  be  drank  in  his  house  or  shop,  op 
in  any  out-house,  yard  or  garden  thereto  belonging,  with- 
out having  obtained  a  license  therefor  as  an  inn,  tavern  or 
hotel  keeper,  shall  forfeit  fifty  dollars  for  each  offense. 
(Section  14,  id.) 

*16. 

§  26.  No  inn,  tavern  or  hotel  keeper,  or  any  other  person 
licensed  to  sell  any  strong  or  spirituous  liquors  or  wines, 
shall,  either  personally,  or  by  his  wife,  servant,  employee 
or  other  agent,  sell  or  give  any  such  liquors  or  wines 
to  any  Indian  or  apprentice,  knowing  or  having  reason  to 
believe  him  to  be  such,  or  within  the  knowledge  of  such 


EXCISE  AND  HOTEL  LAWS. 


33 


agent,  without  the  consent  of  his  master  or  mistress,  nor  to 
any  minor  under  the  age  of  eighteen  years,  without  the 
consent  of  his  father  or  mother,  or  guardian.  Whoever 
shall,  either  personally  or  by  his  wife,  servant,  employee  or 
other  agent,  offend  against  either  of  these  provisions,  shall 
forfeit  ten  dollars  for  each  and.  every  offense,  to  be  recov- 
ered by  the  master  of  such  apprentice  or  servant,  or  by  the 
parent  or  guardian  of  such  minor ;  and  any  person  who 
shall,  either  personally  or  by  his  wife,  servant,  employee  or 
other  agent,  sell  or  give  away  any  strong  or  spirituous 
liquors,  ale,  beer  or  wine  to  any  Indian  in  this  State,  or 
shall  sell  any  beer,  ale,  wine,  or  any  strong  or  spirtuous 
liquor  to  any  minor  under  the  age  of  fourteen  years,  know- 
ing or  having  reason  to  believe  such  minor  to  be  under  such 
age,  shall  be  deemed  guilty  of  a  misdemeanor,  and,  on  con- 
viction, shall  be  liable  to  a  line  of  twenty-five  dollars  for 
each  and  every  offense.  (Section  15,  1857,  as  amended  by 
chapter  420  of  the  Laws  of  1877.) 
*  18. 

The  amendment  of  this  section  consisted  chiefly  in  pro- 
hibiting the  wife,  servant  or  employee  from  selling  the  same 
as  the  proprietor ;  and  also  making  the  knowledge  of  the 
agent  necessary  as  to  the  fact  that  the  party  receiving  the 
liquor  is  one  of  the  prescribed  persons  ;  and  also  prohib- 
iting any  person,  by  wife,  servant,  employee  or  other  agent, 
from  selling  or  giving  away  any  strong  or  spirituous  liquors, 
ale,  beer  or  wine,  to  any  Indian  or  minor  under  fourteen 
years  of  age,  with  knowledge,  etc.  Knowledge,  or  intent 
to  violate  must  be  shown. 

§  27.  It  shall  be  the  duty  of  every  sheriff,  under-sheriff, 
deputy-sheriff,  constable,  marshal,  policeman  or  officer  of 
police,  to  arrest  all  persons  actually  engaged  in  the  com- 
mission of  any  offense  in  violation  of  this  act,  and  forth- 
with to  carry  such  person  before  any  magistrate  of  the 
same  city  or  town,  to  be  dealt  with  according  to  the  pro- 
visions of  this  act ;  and  it  shall  be  the  duty  of  such  magis- 
trate, on  sufficient  proof  that  such  offense  has  been  com- 
mitted, unless  such  person  shall  elect  to  be  tried  before  such 
magistrate,  and,  unless  the  offense  charged  be  intoxication 
in  any  public  place,  to  require  a  bond  to  be  executed  by 

3 


34 


EXCISE  AND  HOTEL  LAWS. 


such  offender  in  the  penal  sum  of  $100,  with  sufficient  sure- 
ties, conditioned  that  such  offender  will  appear  and  answer 
the  charge  at  the  next  court  of  oyer  and  terminer  or  ses- 
sions, to  be  held  in  said  county,  and  abide  the  order  and 
judgment  of  the  court  therein,  or  to  commit  such  offender 
to  the  county  jail  until  such  judgment  of  said  court,  or 
until  he  be  discharged  according  to  law.  And  it  shall  be 
the  duty  of  the  magistrate  to  entertain  any  complaint  of  a 
violation  of  this  act,  made  by  any  person  under  oath,  and 
forthwith  to  issue  a  warrant,  and  cause  such  offender  to  be 
brought  before  him,  to  comply  with  the  provisions  of  this 
section  ;  and  such  magistrate  shall,  within  ten  days,  cause 
such  bond,  together  with  all  papers  and  affidavits,  with  a 
list  of  the  persons  and  residences  of  the  complainants  and 
witnesses  examined  before  him,  to  be  delivered  to  the  dis- 
trict attorney  of  the  county,  whose  duty  it  shall  be  forth- 
with to  prosecute  the  same.  (Section  16,  chapter  628,  1857, 
as  amended  by  section  1,  chapter  856  of  the  Laws  of  1869.) 

The  chief  amendment  of  this  section  was  to  the  effect 
that,  if  the  offense  charged  be  intoxication  in  any  public 
place,  the  prisoner  was  to  be  disposed  of  under  section  17 
as  amended.  Under  the  original  act,  the  sureties  to  the 
offender's  bond  were  required  to  justify  ;  by  the  amend- 
ment, they  are  to  be  "  sufficient."  (See  post,  chapter  3, 
section  3.) 

§  28.  It  shall  be  the  duty  of  every  such  officer,  whenever 
he  shall  find  any  person  intoxicated  in  any  public  i>lace,  to 
apprehend  such  person  and  take  him  before  some  magis- 
trate of  the  same  city  or  town,  and  if  such  magistrate  shall, 
after  due  examination,  deem  him  too  much  intoxicated  to 
be  examined,  or  to  answer  on  oath  correctly,  he  shall  direct 
said  officer  to  keep  him  in  some  jail,  lock-up  or  other  safe 
and  convenient  place  until  he  shall  become  sober,  and  there- 
upon forthwith  to  bring  him  before  said  magistrate,  whose 
duty  it  shall  then  be  forthwith  to  try  him  for  such  offense ; 
and  such  person,  when  thus  charged  with  intoxication  in 
any  public  place,  shall  not  be  allowed  his  election  to  give  a 
bond,  as  provided  for  in  section  16  of  this  act,  for  his  ap- 
pearance before  the  next  court  of  oyer  and  terminer  or  ses- 
sions ;  and,  upon  his  conviction  by  the  magistrate  of  such 


EXCISE  AND  HOTEL  LAWS. 


35 


offense,  such  person  shall  be  fined  not  less  than  three  nor 
more  than  ten  dollars,  in  the  discretion  of  the  magistrate 
trying-  him,  and  costs  at  the  same  rate  as  in  courts  of  special 
sessions,  and  imprisonment  in  the  county  jail,  work-house 
or  penitentiary  until  paid,  not,  however,  less  than  ten  days 
nor  to  exceed  six  months.  The  offense  of  intoxication  in 
any  public  place  being  hereby  declared  an  offense  against 
the  provisions  of  this  act,  and  punishable  as  above  pro- 
vided, it  shall  be  the  duties  of  such  officers  to  arrest,  or 
cause  to  be  arrested,  all  such  persons  when  so  intoxicated, 
and  of  the  magistrate  to  entertain  such  complaints  and 
make  such  examination  under  the  penalty  of  fifty  dollars, 
with  full  costs  of  suit,  for  any  neglect  to  comply  with  the 
provisions  of  this  section.  (Section  17,  chapter  628,  1857, 
as  amended  by  section  2,  chapter  856,  1869.) 

This  amendment  was  radical.  LTnder  the  original  section 
the  person  found  intoxicated  was  to  be  brought  before  the 
magistrate  and  examined  as  to  the  person  from  whom  he 
received  his  liquor ;  and  such  intoxication  was  made  a  baila- 
ble offense,  punishable,  upon  conviction,  by  a  line  of  ten 
dollars  and  costs,  and  imprisonment  until  paid,  not  exceed- 
ing ten  days.  The  farce  of  making  the  inquiry  as  to  who 
sold  the  liquor  is  left  out  of  the  section  as  amended,  and  it 
gives  the  justice  exclusive  jurisdiction  to  try  the  offender, 
no  bail  being  allowed.    (Seej£>os£,  chapter  3,  section  3.) 

The  amendatory  act  of  1869,  of  which  the  last  two  sec- 
tions were  a  part,  also  declared  that  the  act  as  amended 
should  not  apply  to  the  Metropolitan  police  district.  This 
was  changed  by  the  act  of  1870,  which  extended  the  act  of 
1857  as  amended  and  therein  adopted,  ov^er  the  whole  State. 

It  also  enacted  (section  4,  chapter  856,  1869)  a  declaratory 
provision,  that  ale  and  beer  should  be  regarded  as  covered 
by  the  act  of  1857.  That  act  had  previously  thereto,  when 
alluding  to  liquor,  denominated  it  under  the  term  ''strong 
and  spirituous  liquors  or  wines."  In  1869  the  statute  was 
made  to  conform  to  the  decisions]of*the  courts,  that  ale  and 
beer  were  intoxicating. 

The  act  of  1869  discriminated,  however,  for  the  first  time, 
between  hotel  and  saloon  licenses,  and  allowed  licenses  to 
be  granted  for  the  sale  of  ale  and  beer,  for  a  sum  of  not  less 


36 


EXCISE  AND  HOTEL  LAWS. 


than  ten  dollars.  In  1870  this  provision  was  also  extended 
over  the  Metropolitan  police  district. 

The  acts  of  1870,  1873  and  1877  followed,  each  recognizing 
ale  and  beer  to  be  strong  and  spirituous  liquors.  The  courts, 
still  in  advance  of  statutory  enactments,  have,  in  several  in- 
stances, held  cider  to  be  a  prohibited  "  strong  and  spirituous 
liquor,"  and  not  to  be  sold  without  a  license.  These  decisions 
were  at  the  sessions  of  several  counties,  but  never  reported. 
The  jurors  finding,  on  the  proof  submitted,  that  cider  was 
intoxicating. 

§  29.  Whoever  shall  sell  or  give  away  any  strong  or  spir- 
ituous liquors  or  wines,  or  shall  suffer  any  such  liquors  or 
wines  to  be  sold  or  given  away,  under  his  direction  or  au- 
thority, to  any  intoxicated  person,  shall  forfeit  not  less  than 
ten  nor  more  than  twenty-five  dollars  for  each  offense.  (Sec- 
tion 18,  chapter  628,  1857.) 

£  3o.  It  shall  be  the  duty  of  magistrates  and  overseers  of 
the  poor  in  any  town  or  city,  on  complaint  and  satisfactory 
proof  by  a  wife,  that  her  husband  is  an  habitual  drinker  of 
intoxicating  liquors,  to  issue  written  notices  to  all  dealers 
in  intoxicating  liquors  against  whom  such  complaint  is 
made,  forbidding  the  sale  or  giving  of  such  liquor  to  such 
husband  for  the  term  of  six  months  from  the  date  of  the 
notice,  under  a  penalty  of  fifty  dollars,  with  costs,  for  each 
and  every  sale  or  giving  of  such  liquor,  after  such  notice 
shall  have  been  given  ;  to  be  sued  for  in  her  own  name  and 
for  her  own  use.  It  shall  be  the  duty  of  such  magistrates 
and  overseers  of  the  poor  to  forbid  the  sale  in  like  manner 
in  all  cases  when  a  husband  shall  make  like  satisfactory 
proof  concerning  the  wife,  and  all  the  provisions  of  this  sec- 
tion shall  apply  the  same  in  either  case.  It  shall  be  the 
duty  of  magistrates  and  overseers  of  the  poor,  when  like 
pjroof  is  made  by  a  parent  concerning  a  child,  who  is  a  minor 
under  the  age  of  twenty-one  years,  or  by  a  child  concerning 
a  parent,  to  forbid  the  sale  in  like  manner  ;  and  all  the  pro- 
visions of  this  act  shall  apply  as  in  other  cases  named  above. 
(Section  19,  id.) 

§  31.  It  shall  not  be  lawful,  under  the  provisions  of  this 
act,  to  sell  intoxicating  liquors  to  any  person  guilty  of 
habitual  drunkenness,  nor  to  any  person  against  whom  the 


EXCISE  AND  HOTEL  LAWS. 


37 


seller  may  have  been  notified  by  parent,  guardian,  husband 
or  wife,  from  selling  intoxicating  liquors,  and  every  party 
so  selling  or  retailing  intoxicating  liquors,  shall,  on  proof 
thereof,  before  any  court  of  competent  jurisdiction,  be  de- 
prived of  his  license  to  sell,  and  shall  not  be  allowed  a 
renewal  of  said  license,  and  in  addition,  on  conviction,  shall 
be  punished  by  a  line  of  not  less  than  twenty  dollars,  nor 
more  than  fifty  dollars,  for  each  and  every  violation  of  the 
provisions  herein  set  forth.  If  any  inn,  tavern  or  hotel 
keeper,  or  any  other  person  or  persons  whatsoever,  know- 
ingly (ontside  of  any  poor-house),  shall  sell  or  give  to  any 
pauper  or  inmate  of  any  poor-house  or  alms-house,  strong 
or  spirituous  liquors,  or  wines,  such  person  or  persons  so 
offending  shall  be  lined  twenty-live  dollars,  and  be  guilty  of 
a  misdemeanor,  and  on  conviction  shall  be  imprisoned  not 
more  than  sixty  days.    (Section  20,  id.) 

§  32.  No  inn,  tavern  or  hotel  keeper,  or  other  person,  shall 
.sell  or  give  away  intoxicating  liquors,  or  wines,  on  Sunday 
or  upon  any  day  on  which  a  general  or  special  election  or 
town  meeting  shall  be  held,  and  within  one-quarter  of  a  mile 
from  the  place  where  such  general  or  special  election  or  town 
meeting  shall  be  held,  in  any  of  the  villages,  cities  or  towns 
of  this  State,  to  any  person  whatever,  as  a  beverage.  In 
case  the  election  or  town  meetings  shall  not  be  general 
throughout  the  State,  the  provisions  of  this  section  in  such 
case  shall  only  apply  to  the  city,  county,  village  or  town  in 
which  such  election  or  town  meeting  shall  be  held.  Who- 
ever shall  offend  against  the  provisions  of  this  section  shall 
be  guilty  of  a  misdemeanor,  and  shall  be  punished  for  each 
offense  by  a  fine  not  less  than  thirty  dollars,  nor  more  than 
$200,  or  by  imprisonment  not  less  than  live  days  nor  more 
than  fifty  days,  or  both  such  rine  and  imprisonment,  at  the 
discretion  of  the  court.  (^Section  21,  chapter  u*2S,  1857,  as 
amended  by  section  5,  chapter  549  of  the  Laws  of  1873.  | 

This  section,  before  amendment,  only  applied  to  persons 
licensed,  and  upon  conviction  could  be  imprisoned  not  more 
than  twenty  days.  There  was  no  discretion  in  the  court  to 
line  or  imprison  as  in  the  section  as  amended. 

§  33.  The  penalties  imposed  by  this  act.  except  the  penal- 
ties provided  for  by  sections  15  and  19,  shall  be  sued  for  and 


38 


EXCISE  AND  HOTEL  LAWS. 


recovered  by  and  in  the  name  of  the  overseers  of  the  poor  of 
the  town  or  city  in  which  the  alleged  penalty  is  incurred, 
except  in  snch  towns  or  cities  as  have  no  overseers  of  the 
poor,  in  which  case  said  penalties  shall  be  sned  for  and  re- 
covered by  and  in  the  name  of  the  board  of  commissioners 
of  excise  of  the  town  or  city  aforesaid,  and  paid  over  to  the 
treasury  of  the  county  for  the  support  of  the  poor  of  the 
town  or  city  in  which  such  penalty  was  incurred,  except 
that  in  counties  where  there  is  no  distinction  between  town 
and  county  poor,  then  for  the  poor  of  such  county,  within 
thirty  days  after  receipt  of  the  same  by  such  commissioners, 
overseers  or  their  attorneys.  (Section  22,  chapter  628,  1857, 
as  amended  by  chapter  109  of  the  Laws  of  1878.) 
*19. 

This  section  was  also  amended  by  section  1,  chapter  820, 
Laws  of  1873.  As  original ly  passed,  the  penalties,  except 
under  sections  8,  15  and  19,  were  to  be  sued  for  and  recov- 
ered in  the  name  of  the  board  of  commissioners  of  excise, 
and  paid  over  to  the  treasurer  of  the  county  for  the  poor  of 
the  county.  This  was  when  the  commissioners  of  excise 
were  county  officers  and  appointed  as  prescribed  in  the  first 
section  of  the  act  of  1857. 

Section  8  then  gave  the  penalty  to  the  overseer  of  the  poor 
for  the  use  of  the  poor,  so  that  in  1873,  when  section  22  was 
amended,  it  gave  all  penalties  to  the  overseer  of  the  poor, 
except  under  sections  15  and  19,  which  x>rescribed  special 
methods  of  recovery  and  disposition  of  proceeds.  (See  sec- 
tions 26  and  30,  ante.) 

The  act,  as  amended  in  1878,  makes  a  provision  for  such 
towns  as  have  no  overseer  of  the  poor,  in  such  case  making 
it  the  duty  of  the  commissioners  of  excise  to  prosecute,  and 
also  making  provision  for  county  poor,  in  counties  where 
there  is  no  distinction  between  town  and  county  poor. 

By  the  above  section,  as  amended,  all  penalties  incurred 
are  to  be  sued  for  and  recovered  by  and  in  the  name  of  the 
overseer  of  the  poor,  except  under  sections  15  and  19. 

The  reader  is  requested  to  observe,  by  the  decisions  here- 
inafter cited,  that  the  forfeiture  of  a  hotel,  store  or  saloon 
keepers  bond,  is  not  regarded  as  a  penalty,  and,  therefore, 


EXCISE  AND  HOTEL  LAWS. 


39 


the  action  upon  such  bond  is  not  to  be  brought  by  the 
overseer.    (See  post,  chapter  3,  section  5.) 

§  34.  Every  bond  taken  pursuant  to  the  provisions  of  this 
act  shall,  within  ten  days  after  the  execution  of  the  same,  be 
filed  in  the  office  of  the  clerk  of  the  town  or  village  in  which 
the  license  shall  be  granted,  and  in  cities  in  the  city  clerk's 
office.    (Sections  23,  chapter  626,  1857.) 

*  20. 

This  section  has  not  been  changed. 

§  35.  Whenever  a  breach  of  the  condition  of  such  bond, 
given  upon  the  granting  of  any  licanse,  shall  happen,  it  shall 
be  the  duty  of  the  commissioners  of  excise,  the  supervisor  of 
the  town,  mayor  of  the  city,  or  trustees  of  the  village  in  which 
the  person  who  shall  incur  the  penalty  shall  reside,  to  prose- 
cute the  same  and  recover  the  penalty  therefor.  (Section 
24,  id.) 

*2l. 

§  36.  Whenever  any  conviction  or  judgment  shall  be  ob- 
tained against  any  person,  licensed  to  sell  strong  or  spiritu- 
ous liquors  or  wines,  for  any  violation  of  the  provisions  of 
this  act,  either  in  a  suit  for  a  penalty,  or  in  a  suit  upon  a 
bond  given  by  such  person,  it  shall  be  the  duty  of  the  jus- 
tice or  court  before  whom  the  same  shall  be  had  to  transmit 
to  the  next  court  of  sessions  of  the  county  a  statement  of 
such  conviction  or  judgment,  and  the  offense  for  which  it 
was  obtained.    (Section  25,  id.) 

*22. 

§  37.  The  said  court  shall  cause  the  person  or  persons 
against  whom  such  conviction  or  judgment  was  obtained,  to 
be  notified  to  appear  on  such  day  as  the  court  shall  appoint, 
to  show  cause  why  any  such  license  that  may  have  been 
granted  to  him  or  them  should  not  be  revoked.  At  the  day 
appointed,  and  on  such  other  days  as  the  court  shall  ap- 
point, it  shall  proceed  to  inquire  into  the  circumstances, 
and  shall  revoke  the  license  granted  to  the  person  or  per- 
sons violating  the  provisions  of  this  act.    (Section  26,  id.) 

*23. 

§  38.  The  person  whose  license  shall  be  revoked  shall  be 
incapable  of  receiving  any  such  license  to  sell  strong  or 


40 


EXCISE  AND  HOTEL  LAWS. 


spirituous  liquors  or  wines  for  the  space  of  three  years  from 
the  time  of  such  revocation.    (Section  27,  id.) 
*24. 

§  39.  Any  person  who  shall  sell  any  strong  or  spirituous 
liquors  or  wines  to  any  of  the  individuals  to  whom  it  is  de- 
clared by  this  act  to  be  unlawful  to  make  such  sale,  shall 
be  liable  for  all  damages  which  may  be  sustained  in  conse- 
quence of  such  sale ;  and  the  parties  so  offending  may  be 
sued  in  any  of  the  courts  of  this  State  by  any  individual 
sustaining  such  injuries,  or  by  the  overseers  of  poor  of  the 
town  where  the  injured  party  may  reside,  and  the  sum  re- 
covered shall  be  for  the  benefit  of  the  party  injured.  (Sec- 
tion 28,  id  ;  see  sections  69  and  70,  post,  Civil  Damage  Act.) 

§  40.  It  shall  be  the  duty  of  courts  to  instruct  grand 
jurors  to  inquire  into  all  offenses  against  the  provisions  of 
this  act,  and  to  present  all  offenders  under  this  act,  and  also 
all  persons  who  may  be  charged  with  adulterating  imported 
or  other  intoxicating  liquors  with  poisonous  or  deleterious 
drugs  or  mixtures,  or  selling  the  same,  or  with  knowingly 
importing  or  selling  intoxicating  liquors  or  wines  adulter- 
ated with  poisonous  or  deleterious  drugs  or  mixtures,  which 
offenses  are  hereby  declared  to  be  misdemeanors,  to  be  pun- 
ished by  imprisonment  in  the  penitentiary,  work-house  or 
jail,  for  a  period  of  three  months,  and  by  a  fine  of  $100. 
(Section  29,  id.) 

The  $100  fine  and  three  months  imprisonment  prescribed 
in  this  section,  applies  only  to  persons  adulterating  or  im- 
porting adulterated  liquors,  and  not  to  all  offenses  specified 
in  the  act. 

§  41.  In  case  the  parties  or  persons  whose  duty  it  is  to 
prosecute  for  any  penalty  imposed  for  any  violation  of  the 
provisions  of  this  act  shall,  for  the  period  of  ten  days  after 
complaint  to  them  that  any  person  has  incurred  such  pen- 
alty, accompanied  with  reasonable  proof  of  the  same,  neg- 
lect or  refuse  to  prosecute  for  such  penalty,  any  other 
person  may  prosecute  therefor,  in  the  name  of  the  overseers 
of  the  poor  of  the  town  in  which  such  alleged  penalty  was 
incurred,  and  in  the  manner  provided  by  section  twenty- 
two  of  this  act,  as  the  same  is  amended  by  section  one  of 


EXCISE  AND  HOTEL  LAWS. 


41 


this  chapter.  (Section  30,  chapter  628,  1857,  as  amended 
by  section  2,  chapter  820,  1873.) 

We  assume  that  the  penalties  under  sections  15  and  19 
are  not  meant  to  be  prosecuted  "by  any  other  person," 
although  the  strict  reading  of  the  act  would  so  dictate,  those 
penalties  being  given  to  private  persons. 

§  42.  All  incorporated  companies  and  persons  in  this  State 
engaged  in  conveying  passengers,  including  especially  all 
railroad,  steamboat  and  ferry  companies,  and  all  kinds  of 
corporations  conveying  for  hire,  persons  or  property,  shall 
be  and  hereby  are  r<  quired  to  refuse  employment  to  all  per- 
sons who,  on  good  and  sufficient  proof,  shall  be  shown  to 
indulge  in  the  intemperate  use  of  intoxicating  drinks,  and 
any  such  company  which  shall  retain  in  its  employ  any  per- 
son or  persons  who  shall,  on  competent  proof,  be  shown  to 
be  intoxicated  at  any  period  whilst  in  the  active  service  of 
said  company  or  person,  either  as  engineer,  conductor,  fire- 
man switch -tender,  commander,  pilot,  mate  or  foreman,  or 
be  in  any  way  connected  with  the  moving  power  or  manage- 
ment, or  whose  duty,  if  neglected,  would  diminish  the  se- 
curity and  safety  of  life,  limb  or  property  entrusted  thereto, 
said  company  or  corporation  shall  be  liable  to  pay  a  sum  of 
not  less  than  fifty  dollars  nor  more  than  §100  to  the  county 
treasurer  in  the  county  where  the  offense  may  be  committed 
and  proved,  before  any  court  of  competent  jurisdiction. 
(Section  31,  chapter  628*  1857.) 

§  43.  In  any  judgment  rendered  or  recovered  on  any  bond 
to  be  given  under  this  act,  or  for  any  penalty  incurred  under 
this  act,  the  person  or  persons  against  whom  such  judgment 
shall  be  rendered  shall  not  be  entitled,  under  any  execution 
issued  on  such  judgment,  to  the  liberties  of  the  jail.  (Sec- 
tion 32,  id  ;  see  2?osl,  chapter  3,  section  11.) 

§  44.  Title  nine  of  chapter  twenty  of  the  first  part  of  the 
Revised  Statutes,  and  the  act  entitled  "An  act  for  the  pre- 
vention of  intemperance,  pauperism  and  crime,"  passed 
April  9,  1855,  and  all  other  acts  inconsistent  with  the  pro- 
visions of  this  act,  are  hereby  repealed.    (Section  33,  id.) 

This  concludes  the  excise  law  of  1857,  every  section  hav- 
ing been  given  in  full  as  originally  passed  or  amended  by 
subsequent  statutes,  except  the  first  section,  which  related 


42 


KX(  [SE  AND  HOTEL  LAWS. 


solely  to  county  commissioners,  their  manner  of  appoint- 
ment, etc..  they  having  been  entirely  superceded  by  com- 
missioners in  towns,  villages  and  cities.    (  Section  45.  I 

§  45.  All  the  provisions  of  this  act,  as  amended,  shall  be  held 
to  apply  to  the  sale  of  ale  or  beer,  except  so  much  thereof 
as  forbids  the  granting  of  license  to  any  person,  except  to 
such  persons  as  propose  to  keep  an  inn,  tavern  or  hotel  : 
and  the  commissioners  of  excise  may,  in  their  discretion, 
grant  license  for  the  sale  of  ale  or  beer  for  a  sum  not  less 
than  ten  dollars  to  other  than  those  who  propose  to  keep  an 
inn.  tavern  or  hotel :  and  the  provisions  of  this  act  shall  ex- 
tend to  all  portions  of  the  State,  except  the  Metropolitan 
police  district.    *  Section  4.  chapter  856,  1869.  I 

§  46.  The  act  entitled  "An  act  to  regulate  the  sale  of  in- 
toxicating liquors  within  the  Metropolitan  police  district  of 
the  State  of  Xew  York,**  passed  April  14.  I860,  is  hereby 
repealed  :  and  the  provisions  of  the  act  passed  April  16, 
1857,  except  where  the  same  are  inconsistent  or  in  conflict 
with  the  provisions  of  this  act.  shall  be  taken  and  construed 
as  a  part  of  this  act.  and  be  and  remain  in  full  force  and 
effect  throughout  the  whole  of  this  State.  (Section  6,  chap- 
175,  1870.) 

It  will  be  observed  by  reference  to  the  above  section,  that 
it  extends  the  law  of  1857  as  amended  or  adopted  by  said 
section  to  the  whole  State,  and  makes  it.  so  far  as  unre- 
pealed, or  not  inconsistent,  a  part  of  the  act  of  1870.  The 
local  statutes  of  different  cities  and  counties,  so  far  as  we 
shall  give  them  herein,  we  suppose  to  be  still  in  force,  not- 
withstanding the  language  used  in  this  section. 

47.  Licenses  granted  as  in  this  act  provided,  shall  not 
authorize  any  person  or  persons  to  expose  for  sale,  or  sell, 
give  away  or  dispose  of  any  strong  or  spirituous  liquors, 
wines,  ale  or  beer,  on  any  day  between  the  hours  of  one 
and  live  o'clock  in  the  morning.  And  all  places  licensed, 
as  aforesaid,  shall  be  closed  and  kept  closed  between  the 
hours  aforesaid,  and  at  all  other  times  when  such  selling  is 
not  authorized  by  law  ;  and  it  shall  be  the  duty  of  every 
sheriff,  constable,  policeman  and  officer  of  police  to  enforce 
the  observance  of  the  foregoing  provisions.  Nothing  herein 
contained  shall  be  construed  to  prevent  hotels  from  receiv- 


EXCISE  AND  HOTEL  LAWS. 


43 


ing  and  entertaining  travelers  at  any  time,  subject  to  the  re- 
strictions contained  in  this  act  and  the  act  hereby  amended. 
(Section  5,  chapter  175, 1870,  as  amended  by  section  3,  chap- 
ter 549,  1873.) 

§  48.  In  no  town  or  village  shall  the  commissioners  of 
excise  created  by  this  act,  appoint  a  clerk  of  the  board 
of  excise.  The  pay  of  commissioners  of  excise  in  towns 
or  villages  shall  be  three  dollars  per  diem.  The  moneys 
arising  from  licenses  in  any  town  or  village  shall  be  depos- 
ited with  the  county  treasurer,  within  thirty  days  after  re- 
ceiving the  same,  to  be  expended  under  the  direction  of  the 
board  of  supervisors  at  their  next  annual  meeting,  for  the 
support  of  the  poor  of  such  town.  Moneys  arising  from 
licenses  in  cities  shall  be  paid  into  the  treasuries  of  such 
cities  respectively.  The  book  of  minutes  kept  by  the  com- 
missioners of  excise  in  any  town  or  village,  except  when  in 
use  by  such  commissioners,  shall  be  deposited  in  the  clerk's 
office  of  such  town  or  village.  The  expenses  of  procuring 
necessary  books  for  minutes,  and  necessary  blanks,  in  any 
town  or  village,  when  actually  incurred,  shall  be  audited 
and  paid  in  like  manner  as  other  town  or  village  charges. 
(Section  7,  chapter  175,  1870.) 

*  22,  24. 

A  portion  of  section  5  of  the  act  of  1857  (ante,  §  16),  is 
in  direct  opposition  to  the  first  part  of  this  section,  and 
therefore  "inconsistent"  therewith  and  repealed. 

§  49.  Any  conviction  for  the  violation  of  any  provision  of 
this  act,  or  of  the  acts  hereby  amended,  by  any  person  or 
persons  licensed,  or  at  any  place  licensed  as  herein  provided, 
shall  forfeit  and  annul  such  license.  The  board  of  excise 
of  any  city,  town  or  village,  may,  at  any  time,  and  upon 
the  comx>laint  of  any  resident  of  said  city,  town  or  village, 
shall,  summon  before  them  any  person  or  persons  licensed 
as  aforesaid  ;  and  if  they  shall  become  satisfied  that  any 
such  person  or  persons  has  or  have  violated  any  of  the  pro- 
visions of  this  act,  or  of  the  acts  hereby  amended,  they 
shall  revoke,  cancel  and  annul  the  license  of  such  person 
or  persons,  which  they  are  hereby  empowered  to  do,  and 
where  necessary  to  enter  upon  the  premises  and  take  pos- 
session of  and  cancel  such  license.    Upon  an  inquiry  the 


44 


EXCISE  AND  HOTEL  LAWS. 


said  board,  or  the  part}'  complained  of.  may  summon,  and 
the  said  board  may  compel,  the  attendance  of  witnesses 
before  them,  and  examine  them  under  oath.  (Section  8, 
chapter  175,  1870,  as  amended  by  section  4,  chapter  549, 
1873.) 

Sections,  of  the  act  of  1870  was  not  of  general  applica- 
tion, but  was  limited  as  to  time  and  place,  and  is  no  longer 
operative,  being  amended  out  of  existence  by  the  above 
amendatory  section. 

It  may  be  well  to  repeat  that  villages  as  such  have  now 
no  board  of  excise,  unless  by  special  statute.  The  words 
"boards  of  excise  of  villages''  had  in  contemplation  the 
law  of  1870.  which  created  village  boards;  but  the  act  of 
1874  (see  ante,  sections  1  and  2)  if  not  in  terms,  in  fact,  leg- 
islated village  boards  out  of  existence.  In  reading  the  law 
of  1870  and  1873,  above  given,  the  word  ••villages"  can  be 
left  out,  when  the  sections  will  be  understood  in  their  pres- 
ent meaning. 

§  50.  Nothing  herein  contained  shall  in  any  manner  apply 
to  any  city  or  town  where  the  majority  of  voters  have  voted 
for,  or  shall  hereafter  vote  for,  local  prohibition  in  accord- 
ance with  any  law  providing  for  such  voting,  until  such  city 
or  town  shall  reverse  by  vote  such  local  prohibition.  (Sec- 
tion 6,  chapter  549,  1873.) 

§  51.  If  any  person  employed,  or  who  shall  be  employed, 
upon  the  railroad  of  any  such  corporation  as  engineer, 
conductor,  baggagemaster,  brakeman,  switchman,  fireman, 
bridge-tender,  flagman,  signalman,  or  having  charge  of  the 
regulating  or  running  of  trains  upon  said  railroad  in  any 
manner  whatsoever,  be  intoxicated  while  engaged  in  the  dis- 
charge of  such  duties,  he  shall,  upon  conviction  thereof,  be 
deemed  guilty  of  a  misdemeanor,  and  shall  be  punishable 
for  each  offense  by  a  tine  not  exceeding  6100,  or  by  imprison- 
ment in  a  county  jail  for  a  term  not  exceeding  six  months, 
in  the  discretion  of  the  court  having  cognizance  of  the 
offense.  And  if  any  person  so  employed,  as  aforesaid,  by 
any  such  corporation  shall,  by  reason  of  such  intoxication, 
do  any  act  or  neglect  any  duty,  which  act  or  neglect  shall 
cause  the  death  or  injury  to  any  person  or  persons,  he  shall, 
upon  conviction  thereof,  be  punishable  by  imprisonment  in 


EXCISE  AND  HOTEL  LAWS. 


45 


the  county  jail  for  a  term  of  not  less  than  six  months,  or  in 
the  State  prison  for  a  term  not  exceeding  ft ve  years,  in  the 
discretion  of  the  court  having  cognizance  of  the  offense. 
(Section  41  of  an  act  entitled  uAn  act  to  authorize  the  for- 
mation of  railroad  companies,  and  to  regulate  the  same," 
passed  April  2,  1850,  as  amended  by  section  4,  chapter  560, 
1871.) 

A  person  who,  being  employed  upon  any  railway  as 
engineer,  conductor,  baggagem aster,  brakeman,  switch- 
tender,  fireman,  bridge-tender,  flagman,  signalman,  or  hav- 
ing charge  of  stations,  starting,  regulating  or  running  trains 
upon  a  railway,  or  being  employed  as  captain,  engineer  or 
other  officer  of  a  vessel  propelled  by  steam,  is  intoxicated 
while  engaged  in  the  discharge  of  any  such  duties,  is  guilty 
of  a  misdemeanor.    (Section  420,  Penal  Code.) 

By  subdivision  9,  section  56  of  the  Code  of  Criminal  Pro- 
cedure, the  "courts  of  special  sessions,  except  in  the  city 
and  county  of  New  York  and  the  city  of  Albany,  have,  in 
the  first  instance,  exclusive  jurisdiction  to  hear  and  deter- 
mine charges  of  misdemeanor  committed  within  their  re- 
spective counties.''  as  follows:  "Intoxication  of  a  person 
engaged  in  running  any  locomotive  engine  upon  any  rail- 
road, or  while  acting  as  conductor  of  a  car,  or  train  of  cars, 
on  any  such  railroad."  And  by  subdivision  12,  "offenses 
against  the  laws  relating  to  excise,  and  the  regulation  of 
taverns,  inns  and  hotels."  And  by  subdivision  27,  "un- 
lawfully selling  or  giving  to  any  Indian  spirituous  liquors 
or  intoxicating  drinks."  And  by  subdivision  32,  "selling 
liquors  in  a  court  house  or  jail  contrary  to  law." 

§  52.  Licenses  to  keep  taverns,  pursuant  to  the  laws  of 
this  State,  may  be  granted  by  the  commissioners  of  excise, 
in  the  several  cities  and  towns  of  this  State,  or  by  any  board 
or  officers  exercising  the  power  of  such  commissioners,  with- 
out including  a  license  to  sell  strong  or  spirituous  liquors, 
ale,  wines,  beer  or  alcoholic  drink.  And  in  all  such  cases  the 
license  shall  express  such  restrictions  on  its  face,  and  a  fee 
of  live  dollars  may  be  charged  for  granting  such  license,  and 
no  more  ;  but  no  such  license  shall  be  given  until  the  bond 
required  to  be  given  by  tavern  keepers  is  executed  and  de- 


46 


EXCISE  AND  HOTEL  LAWS. 


livered  to  said  commissioners.  (Chapter  419  of  the  Laws  of 
1877.) 

(See  post,  chapter  5,  section  3.) 

§  53.  It  shall  be  lawful  for  the  town  board  of  any  town, 
whose  yearly  receipts  from  the  excise  board  are  in  excess  of 
the  amount  required  to  maintain  the  poor  of  said  town,  to 
expend  the  balance  of  the  same  on  other  ordinary  town 
expenses.    (Chapter  143  of  the  Laws  of  1872.) 

By  the  same  chapter,  all  acts  or  parts  of  acts  inconsistent 
with  the  above  section  were  repealed. 

§  f>4.  Strong,  spirituous  or  fermented  liquor,  or  wine, ' 
shall  not,  on  any  pretence  whatever,  be  sold  within  a  build- 
ing established  as  a  court  house  for  holding  courts  of  record, 
while  such  a  court  is  sitting  therein.    (Section  32,  Code  of 
Civil  Procedure.) 

A  person  violating  the  last  section  is  guilty  of  a  misde- 
meanor.   (Section  33,  id.) 

§  55.  In  cities  and  incorporated  villages  no  building,  or 
part  of  a  building,  shall  be  designated  as  a  registry  or  x>oll- 
ing  place  in  which,  or  any  part  of  which,  spirituous  or  in- 
toxicating liquors  are  sold.  (Section  16,  chapter  570,  Laws 
of  1872.) 

No  lager  beer,  ale,  wine  or  spirituous  liquors  shall  be 
allowed  on  election  day  in  any  room  used  for  election  pur- 
poses.   (Section  17,  chapter  56,  Laws  of  1880.) 

§  56.  It  shall  be  unlawful  to  introduce  into  any  poor- 
house,  juvenile  reformatory,  protectory,  house  of  refuge, 
jail,  penitentiary  or  prison,  or  to  bring  upon  the  premises 
thereof,  any  wine,  alcoholic,  malt  or  intoxicating  liquors, 
except  upon  the  written  requisition  of  the  medical  officer 
of  such  institution,  or  for  any  trustee,  manager,  officer, 
agent,  employee  or  other  person  connected  with  any  such 
institution,  or  the  inmates  thereof,  to  use,  to  offer  to  others, 
or  to  allow  to  be  used  within  any  such  institution,  or  upon 
the  premises  thereof,  any  wine,  alcoholic,  malt  or  intoxi- 
cating liquors,  except  by  the  direction  and  prescription  of 
the  medical  officer  of  such  institution,  who  shall,  in  every 
case  of  such  prescription,  make  a  record  of  the  name  of 
the  person  and  the  cause  for  which  such  prescription  is 
given,  in  a  book  kept  publicly  for  such  purpose,  which 


EXCISE  AND  HOTEL  LAWS. 


47 


record  shall  be  verified  by  the  affidavit  of  such  medical  offi- 
cer, at  least  once  in  every  six  months.  (Section  1,  chapter 
429,  Laws  of  1880.) 

§  57.  Any  person  violating  this  act,  upon  conviction 
thereof  shall  be  deemed  guilty  of  a  misdemeanor.  (Sec- 
tion 2,  id.) 

§  58.  No  minor  under  the  age  of  fourteen  years  shall  be 
admitted  at  any  time  to,  or  permitted  to  remain  in,  any 
saloon  or  place  of  entertainment  where  any  spiritous  liquors 
or  wines  or  intoxicating  or  malt  liquors  are  sold,  exchanged 
or  given  away,  or  at  places  of  amusement  known  as  dance 
houses  and  concert  saloons,  unless  accompanied  by  parent  or 
guardian.  Any  proprietor,  keeper  or  manager  of  any  such 
place,  who  shall  admit  such  minor  to,  or  permit  him  or  her 
to  remain  in,  any  such  place,  unless  accompanied  by  parent 
or  guardian,  shall  be  guiity  of  a  misdemeanor.  (Section  1, 
chapter  428,  Laws  of  18770 

§  59.  Any  person  who  shall  suffer  or  permit  any  child 
under  the  age  of  sixteen  years  to  play  any  game  of  skill  or 
chance  in  any  place  wherein,  or  adjacent  to  which,  any  beer, 
ale,  wine  or  liquor  is  sold,  shall  be  guilty  of  a  misdemeanor. 
And  any  such  child  found  engaged  in  playing  any  such 
game  in  any  such  place  may  be  arrested  and  detained  as  a 
witness  against  the  person  so  offending.  (Section  2,  chap- 
ter 496,  Laws  of  1881.) 

§  60.  A  person  who  admits  to,  or  allows  to  remain  in  any 
dance  house,  concert  saloon,  theater  or  other  place  of  enter- 
tainment, owned,  kept  or  managed  by  him,  where  wines  or 
spirituous  or  malt  liquors  are  sold  or  given  away,  any  child, 
actually  or  apparently  under  the  age  of  fourteen  years,  un- 
less accompanied  by  a  parent  or  guardian,  is  guilty  of  a 
misdemeanor.    (Section  290,  Penal  Code.) 

§  61.  A  male  child  actually  or  apjmrently  under  the  age 
of  sixteen  years,  or  a  female  child  actually  or  apparently 
under  the  age  of  fourteen  years,  who  is  found  frequenting 
the  company  of  reputed  thieves  or  prostitutes,  or  a  house  of 
prostitution  or  assignation,  or  living  in  such  a  house  either 
with  or  without  its  parent  or  guardian,  or  frequenting  con- 
cert saloons,  dance  houses,  theaters  or  other  places  of  enter- 
tainment, or  places  where  wines,  malt  or  spirituous  liquors 


48 


EXCISE  AND  HOTEL  LAWS. 


are  sold,  without  being  in  charge  of  its  parent  or  guardian, 
must  be  arrested  and  brought  before  a  proper  court  or 
magistrate  as  a  vagrant,  disorderly  or  destitute  child.  Such 
court  or  magistrate  may  commit  the  child  to  any  charitable, 
reformatory  or  other  institution  authorized  by  law  to  re- 
ceive and  take  charge  of  minors,  or  may  make  any  disposi- 
tion of  the  child  such  as  now  is,  or  hereafter  may  be, 
authorized  in  the  cases  of  vagrants,  truants,  paupers  or  dis- 
orderly persons.  (Subdivisions  4  and  5,  section  291.  Penal 
Code.) 

§  62.  The  following  persons  are  vagrants  : 

1st.  A  person  who,  not  having  visible  means  to  maintain 
himself,  lives  without  employment. 

2d.  A  person  who,  being  an  habitual  drunkard,  abandons, 
neglects  or  refuses  to  aid  in  the  support  of  his  family. 

3d.  A  person  who  has  contracted  an  infectious  or  other 
disease,  in  the  practice  of  drunkenness  or  debauchery,  re- 
quiring charitable  aid  to  restore  him  to  health. 

4th.  A  person  wrandering  abroad  and  lodging  in  taverns, 
groceries,  ale-houses,  watch  or  station-houses,  out-houses, 
market  places,  sheds,  stables,  barns  or  uninhabited  build- 
ings, or  in  the  open  air,  and  not  giving  a  good  account  of 
himself.  (Subdivisions  1,  2,  3  and  6,  section  887,  Code  of 
Criminal  Procedure. ) 

There  are  other  persons  named  as  vagrants  in  the  above 
section,  not  necessary  to  enumerate  in  this  wrork. 

A  peace  officer  must,  when  required  by  any  person,  take 
a  vagrant  before  a  justice  of  the  peace  or  police  justice  of 
the  same  city,  village  or  town,  or  before  the  mayor,  re- 
corder or  city  judge,  or  judge  of  the  general  sessions  of  the 
same  city,  for  the  purpose  of  examination.  (Section  890, 
Code  of  Criminal  Procedure.) 

The  further  proceedings,  after  arrest  of  a  vagrant,  are 
pointed  out  in  title  sixth  of  the  Code  of  Criminal  Procedure. 

§  63.  Keepers  of  bawdy-houses,  or  houses  for  the  resort  of 
prostitutes,  drunkards,  tipplers,  gamesters,  habitual  crimi- 
nals, are  disorderly  persons.  (Part  of  section  899,  Code  of 
Criminal  Procedure.) 

Upon  complaint,  on  oath,  to  a  justice  of  the  peace,  or 
police  justice  of  a  city,  village  or  town,  or  to  the  mayor, 


EXCISE  AND  HOTEL  LAWS. 


49 


recorder,  city  judge  or  judge  of  the  general  sessions  of  a 
city,  against  a  person  as  being  disorderly,  the  magistrate 
must  issue  a  warrant,  signed  by  him,  with  his  name  of  office, 
requiring  a  peace  officer  to  arrest  the  defendant,  and  bring 
him  before  the  magistrate  for  examination.  (Section  900, 
Code  of  Criminal  Procedure.) 

The  further  proceedings,  after  arrest  of  a  disorderly  per- 
son, and  the  punishment,  are  pointed  out  in  title  7  of  the 
Code  of  Criminal  Procedure. 

§  64.  No  act  committed  by  a  person  while  in  a  state  of 
voluntary  intoxication,  shall  be  deemed  less  criminal  by 
reason  of  his  having  been  in  such  condition.  But  whenever 
the  actual  existence  of  any  particular  purpose,  motive  or 
intent  is  a  necessary  element  to  constitute  a  particular  spe- 
cies or  degree  of  crime,  the  jury  may  take  into  considera- 
tion the  fact  that  the  accused  was  intoxicated  at  the  time, 
in  determining  the  purpose,  motive  or  intent  with  which  he 
committed  the  act.    (Section  22,  Penal  Code.) 

§  65.  A  physician  or  surgeon,  or  person  practicing  as 
such,  who,  being  in  a  state  of  intoxication,  without  a  design 
to  effect  death,  administers  a  poisonous  drug  or  medicine, 
or  does  any  other  act  as  a  physician  or  surgeon,  to  another 
person,  wTiich  produces  the  death  of  the  latter,  is  guilty  of 
manslaughter  in  the  second  degree.  (Section  200,  Penal 
Code.) 

§  66.  A  physician  or  surgeon,  or  person  practicing  as 
such,  who,  being  in  a  state  of  intoxication,  administers  any 
poison,  drug  or  medicine,  or  does  any  other  act  as  a  physi-i 
cian  or  surgeon,  to  another  person,  by  which  the  life  of  the 
latter  is  endangered,  or  his  health  seriously  affected,  is 
guilty  of  a  misdemeanor.    (Section  357,  Penal  Code.) 

See  last  section. 

§  67.  A  person  who,  either — 

1st.  With  intent  that  the  same  may  be  sold  as  unadulter- 
ated or  undiluted,  adulterates  or  dilutes  wine,  milk,  distilled 
spirits,  or  malt  liquor,  or  any  drug,  medicine,  food  or  drink, 
for  man  or  beast ;  or, 

2d.  Knowing  that  the  same  has  been  adulterated  or  diluted, 

offers  for  sale  or  sells  the  same  as  unadulterated  or  undiluted, 

or  without  disclosing  or  informing  the  purchaser  that  the 
4 


50 


EXCISE  AND  HOTEL  LAWS. 


same  lias  been  adulterated  or  diluted,  in  a  case  where  special 
provision  has  not  been  otherwise  made  by  statute  for  the 
punishment  of  the  offense  ; 

Is  guilty  of  a  misdemeanor.    (Section  407,  Penal  Code.) 

§  68.  A  person,  who,  with  intent  that  the  same  may  1><- 
used  as  food,  drink  or  medicine,  sells,  or  offers  or  exposes 
for  sale,  any  article  whatever,  which,  to  his  knowledge,  is 
tainted  or  spoiled,  or  for  any  cause  unfit  to  be  used  as  such 
food,  drink  or  medicine,  is  guilty  of  a  misdemeanor.  (Sec- 
tion 408,  Penal  Code.) 

Civil  Damage  Act. 

§  69.  Every  husband,  wife,  child,  parent,  guardian,  em- 
ployer or  other  person  who  shall  be  injured  in  person  or 
property,  or  means  of  support,  by  any  intoxicated  person, 
or  in  consequence  of  the  intoxication,  habitual  or  otherwise, 
of  any  person,  shall  have  a  right  of  action  in  his  or  her 
name,  against  any  person  or  persons  who  shall,  by  selling  or 
giving  away  intoxicating  liquors,  caused  the  intoxication,  in 
whole  or  in  part,  of  such  person  or  persons,  and  any  person 
or  persons  owning  or  renting  or  permitting  the  occupation 
of  any  building  or  premises,  and  having  knowledge  that  in- 
toxicating liquors  are  to  be  sold  therein,  shall  be  liable, 
severally  or  jointly  with  the  person  or  persons  selling  or 
giving  intoxicating  liquors  aforesaid,  for  all  damages  sus- 
tained, and  for  exemplary  damages  ;  and  all  damages  re- 
covered by  a  minor  under  this  act  shall  be  paid  either  to 
such  minor  or  to  his  or  her  parent,  guardian  or  next  friend, 
as  the  court  shall  direct ;  and  the  unlawful  sale  or  giving 
away  of  intoxicating  liquors  shall  work  a  forfeiture  of  all 
rights  of  the  lessee  or  tenant  under  any  lease  or  contract  of 
rent  upon  the  premises.  (Section  1,  chapter  646,  1873  ;  see 
section  39,  ante.) 

%  70.  In  any  action  arising  for  violations  of  the  provisions 
of  this  act,  any  justice  of  the  peace  in  the  county  where  the 
offense  is  committed,  shall  have  jurisdiction  to  try  and  de- 
termine the  same,  providing  the  amount  of  damages  claimed 
do  not  exceed  $200  ;  in  which  case,  and  where  the  damages 
claimed  do  not  exceed  $500,  the  justice  of  the  peace  before 
whom  the  action  is  commenced  shall  associate  with  himself 


EXdSE  AND  HOTEL  LAWS 


51 


any  other  two  justices  of  the  peace  in  the  same  county,  who 
shall  have  jurisdiction  to  try  and  determine  the  same.  (Sec- 
tion 2,  id. 

The  last  two  sections  constitute  what  is  known  as  the 
civil  damage  law.  There  have  been  numerous  decisions 
made  upon  the  same,  some  of  the  most  important  of  which 
are  cited  and  commented  upon  in  a  later  part  of  this  work. 
(See  chapter  4,  section  1.) 

£  71.  For  wrongs  done  to  the  property,  rights  or  interests 
of  another,  for  which  an  action  might  be  maintained  against 
the  wrong-doer,  such  action  may  be  brought  by  the  person 
injured,  or,  after  his  death,  by  his  executors  or  administra- 
tors, against  such  wrong-doer,  and  after  his  death  against 
his  executors  or  administrators,  in  the  same  manner  and 
with  the  like  effect,  in  all  respects,  as  actions  founded  upon 
contracts.   (Third  Ttevised  Statutes  [6th  ed.],  732,  section  1.) 

Previous  to  the  passage  of  the  civil  damage  act,  an  action 
might  be  maintained  under  the  last  section  by  an  executor 
or  administrator,  against  the  person  or  persons  who  sold 
liquor  to  the  testator  or  intestate,  known  by  the  seller  to  be 
an  habitual  drunkard,  and  losing  his  life  while  in  a  state  of 
intoxication.  (See post,  chapter  4,  section  J .  i  And  it  is  not 
probable  that  the  right  of  action  under  this  section  is  taken 
away  by  the  civil  damage  act,  for  that  act  created  a  new  cause 
of  action,  giving  the  right  to  recover  to  certain  persons  therein 
specified,  when  ''injured  in  person  or  property  or  means  of 
.support,' '  but  we  assume  that  a  recovery  under  the  last- 
named  act,  would  bar  a  recovery  under  the  last  section. 
There  are  cases  where  there  would  be  no  person  to  prose- 
cute under  the  civil  damage  act,  or  the  injury  such  that  the 
action  could  not  be  maintained,  while  an  action  could  be 
maintained  by  the  representatives  of  a  deceased  person, 
under  the  last  section. 

Special  Statutes. 

Many  of  the  cities  and  villages  in  this  State  have  special 
-statutes  relating  to  the  excise  laws,  specifying  the  manner 
of  appointment  or  organization  of  the  board  of  excise,  or 
the  disposition  of  excise  moneys,  penalties,  etc.  These  stat- 
utes, when  in  conflict  with  parts  of  the  general  excise  laws, 


52 


EXCISE  AND  HOTEL  LAWS 


govern  for  the  localities  specified.  Such  provisions  of  the 
general  statutes,  however,  as  are  not  in  conflict  with  such 
special  statutes,  are  in  force  in  the  localities  named. 

The  most  important  of  the  special  statutes  will  now  be 
given  for  the  benefit  of  the  cities  and  villages  interested, 
and  that  all  may  easily  know,  without  research,  the  law  as 
applicable  to  all  parts  of  the  State,  except  local  legislation 
in  any  particular  city  or  village,  permissable  under  their 
charters. 

§  72.  "City  and  town  of  Newburgh — 'An  act  to  provide 
for  the  better  support  of  the  poor  in  the  city  and  town  of 
Newburgh,  in  the  county  of  Orange  ;'  passed  April  4,  1871. 

"Sec.  1.  The  annual  report  required  by  the  fifth  section 
of  the  act  entitled  'An  act  for  the  better  support  of  the  poor 
in  the  town  of  Newburgh,  in  the  county  of  Orange,'  passed 
March  23,  1853,  and  the  several  acts  amendatory  thereof,  to 
be  made  by  the  commissioners  of  the  alms-house  of  the  city 
and  town  of  Newburgh,  shall,  after  the  year  1871,  be  made 
by  said  commissioners  on  the  first  day  of  March  in  each 
and  every  year,  and  shall  be  signed,  filed  and  published  as 
required  by  said  fifth  section  of  said  act. 

"Sec.  2.  All  penalties  which  may  hereafter  be  incurred 
for  violation,  committed  either  in  the  city  of  Newburgh  or 
the  town  of  Newburgh,  in  the  county  of  Orange,  of  any  of  the 
laws  of  this  State  relating  to  the  sale  of  intoxicating  liquors, 
may  be  sued  for  and  recovered  by  the  commissioners  of  the 
alms-house  of  the  city  and  town  of  Newburgh  by  civil  ac- 
tion, in  their  corporate  name,  before  any  justice  of  the  peace 
of  said  city  or  town,  or  in  the  county  court  of  Orange  county, 
or  in  the  Supreme  Court ;  and  said  j)enalties,  when  collected, 
shall  be  applied  to  the  support  of  the  poor  of  said  city  and 
town. 

"  Sec.  3.  All  moneys  which  shall  be  collected  and  received 
by  the  commissioners  of  excise  in  the  city  of  Newburgh,  in 
the  county  of  Orange,  or  by  any  other  officers  of  said  city 
or  town  arising  from  licenses  granted  in  said  city  and  town 
under  the  laws  of  this  State  regulating  the  sale  of  intoxi- 
cating liquors,  or  for  penalties  incurred  for  violations  of  such 
laws  committed  in  said  city  or  town,  shall  be  paid  over  by 
the  officers  receiving  the  same  within  twenty  days  after  they 


EXCISE  AND  HOTEL  LAWS. 


53 


shall  receive  the  same  to  the  commissioners  of  the  alms- 
house of  the  city  and  town  of  Xewburgh,  for  the  support 
of  the  poor  of  said  city  and  town. 

"Sec.  4.  All  lines  imposed  or  hereafter  to  be  imposed  by 
the  recorder  of  the  city  of  Xewburgh,  or  by  any  justice  of  the 
peace  of  the  town  of  Newbnrgh,  or  by  any  court  of  crimi- 
nal jurisdiction  in  the  county  of  Orange,  for  drunkenness 
or  violation  of  any  of  the  laws  of  this  State  relating  to  in- 
toxicating liquors  or  the  sale  thereof,  committed  in  the  city 
or  town  of  Xewburgh,  in  the  enmity  of  Orange,  shall  be 
paid  over  by  the  officer  or  officers  receiving  such  lines  to  the 
commissioners  of  the  alms-house  of  the  city  and  town  of 
Xewburgh.  for  the  support  of  the  poor  of  said  city  and 
town.    (As  amended  by  chapter  739,  1S71.  | 

44  Sec.  5.  All  acts  or  parts  of  acts  relating  to  the  support 
of  the  poor  in  the  city  and  town  of  Xewburgh.  in  the  county 
of  Orange,  and  to  the  sale  of  intoxicating  liquors,  so  far  as 
the  latter  are  applicable  to  said  city  and  town,  inconsistent 
with  the  provisions  of  this  act.  are  hereby  repealed."  ■•  Chap- 
ter 276  of  the  Law-  of  1871. 

1 73.  "Orange  county.  The  commissioners  of  excise  of 
the  several  towns  and  villages  in  Orange  county  ^except  the 
city  and  town  of  Xewburgh  i  shall  pay  over  to  the  super- 
visor of  the  town,  within  thirty  days  after  the  receipt 
thereof,  all  moneys  received  by  them  as  excise  commission- 
ers. Such  moneys  shall  be  paid  by  the  supervisor  to  the 
overseers  of  the  poor  of  the  town  in  such  sums  and  at  such 
times  as  may  be  needed  for  the  temporary  relief  of  the  poor 
of  the  town,  as  may  be  directed  by  the  town  board.*1 
(Chapter  533  of  the  Laws  of  1S73. 

£  74.  "City  of  Kingston. — The  common  conncO  shall  ap- 
point three  commissioners  of  excise  who  shall  possess  all 
the  powers  and  perform  the  duties  of  boards  of  commis- 
sioners of  excise,  and  be  subject  to  the  excise  laws  of  this 
State,  except  as  modified  by  this  act.  They  shall  meet  but 
one  day  in  each  month.  The  compensation  of  each  com- 
missioner of  excise  shall  be  three  dollars  for  each  day  of 
actual  service.  Their  expenses  for  necessary  books  and 
blanks  shall  be  audited  and  paid  as  other  city  charges. 
All  license  moneys  and  all  penalties  for  violations  of  excise 


54 


EXCISE  AND  HOTEL  LAWS. 


laws  or  ordinances  shall  be  paid  over  to  the  city  treasurer 
for  the  benefit  of  the  poor  of  the  city,  and  may  be  sued  for 
and  recovered  in  the  corporate  name  of  the  city.  (Section 
58,  title  5,  chapter  150,  1872.) 

" There  shall  be  a  corporation,  in  the  city  of  Kingston  by 
the  name  of  the  commissioners  of  the  alms-house  of  the 
city  of  Kingston,  which  shall  possess  the  usual  powers  of  a 
corporation  for  public  purposes,  and  shall  be  composed  of 
the  several  alms  commissioners  of  said  city.  (Part  of  sec- 
tion 59,  title  6,  id.) 

"The  said  commissioners  shall  also  have  power  to  receive 
from  the  commissioners  of  emigration  all  moneys  they  may 
become  entitled  to  receive  for  and  on  account  of  foreign 
paupers  relieved  by  them.  They  shall  also  be  entitled  to 
receive  the  excise  money  received  in  said  city,  with  all  lines, 
forfeitures  and  penalties  which  may  accrue  to  them  as  such 
commissioners,  together  with  all  money  raised  in  said  city 
for  the  support  of  the  poor,  which  said  several  sums  of 
money  shall  be  applied  by  the  said  commissioners  to  the 
support  and  relief  of  the  poor  in  said  city  according  to  the 
provisions  of  this  title.  All  the  moneys  aforesaid  shall  be 
first  paid  to  the  treasurer  of  said  city,  and  may  be  drawn 
therefrom  by  the  said  commissioners,  from  time  to  time,  as 
the  same  may  be  needed,  upon  warrants  directed  to  said 
treasurer,  and  signed  by  the  president  of  said  commission- 
ers, and  countersigned  by  their  secretary,  and  numbered 
consecutively  as  issued.    (Subdivision  5.  section  60,  id.) 

"The  said  commissioners  shall  also  have  power,  and  it 
shall  be  their  duty,  to  sue  in  their  corporate  name  for  all 
violations  of  the  excise  laws  committed  in  said  city  in  any 
court  having  jurisdiction  of  such  suits.  All  other  suits  and 
proceedings  which  may,  by  laAv,  be  prosecuted  and  main- 
tained by  the  overseers  of  the  poor  of  a  town  to  enforce 
civil  remedies,  shall  and  may  hereafter  be  prosecuted  and 
maintained,  and  remedies  enforced  in  the  name  of  the  com- 
missioners of  the  alms-house  of  the  city  of  Kingston/' 
(Subdivision  6,  section  60,  id.) 

§  75.  "City  of  Poughkeepsie — 'An  act  to  provide  for  the 
better  support  of  the  poor  in  the  city  of  Poughkeepsie,  in 
the  county  of  Dutchess;'  passed  April  23,  1871. 


EXCISE  AND  HOTEL  LAWS. 


55 


"Sec.  1.  All  penalties,  which  may  hereafter  be  incurred 
for  violation,  committed  in  the  city  of  Poughkeepste,  in  the 
county  of  Dutchess,  of  any  of  the  laws  of  this  State,  relating 
to  the  sale  of  intoxicating  liquors,  may  be  sued  for  and  re- 
covered by  the  commissioners  of  the  alms-house  of  the  city 
of  Poughkeepsie  by  civil  action,  in  their  corporate  name, 
before  any  justice  of  the  peace  of  said  city,  or  in  the  county 
court  of  Dutchess  county,  or  in  the  Supreme  Court,  and  said 
penalties,  when  collected,  shall  be  applied  to  the  support  of 
the  poor  of  said  city. 

"Sec.  2.  All  moneys  which  shall  be  collected  and  received 
by  the  commissioners  of  excise  in  the  city  of  Poughkeepsie, 
in  the  county  of  Dutchess,  or  by  any  other  officers  of  said 
city,  arising  from  licenses  granted  in  said  city  under  the 
laws  of  this  State,  regulating  the  sale  of  intoxicating  liquors, 
or  for  penalties  incurred  for  violations  of  such  laws,  com- 
mitted in  said  city,  shall  be  paid  over  by  the  officers  receiv- 
ing the  same,  within  twenty  days  after  they  shall  receive 
the  same,  to  the  commissioners  of  the  alms-house  of  the 
city  of  Poughkeepsie,  for  the  support  of  the  poor  of  said 
city. 

"Sec.  3.  All  lines  imposed  or  hereafter  to  be  imposed  by 
the  recorder  of  the  city  of  Poughkeepsie,  or  by  any  justice 
of  the  peace  of  the  city  of  Poughkeepsie,  or  by  any  court 
of  criminal  jurisdiction  in  the  county  of  Dutchess,  for 
drunkenness,  or  for  violation  of  any  of  the  laws  of  this  State 
relating  to  intoxicating  liquors,  or  the  sale  thereof,  shall  be 
paid  over  by  the  officer  or  officers  receiving  such  tines,  to  the 
commissioners  of  the  alms  house  of  the  city  of  Poughkeepsie 
for  the  support  of  the  poor  of  said  city. 

"Sec.  4.  All  acts  or  parts  of  acts  relating  to  the  support 
of  the  poor  in  the  city  of  Poughkeepsie,  in  the  county  of 
Dutchess,  and  to  the  sale  of  intoxicating  liquors,  so  far  as 
the  latter  are  applicable  to  said  city,  inconsistent  with  the 
provisions  of  this  act,  are  hereby  repealed."  (The  first  four 
sections  of  chapter  736,  1871.) 

The  above  act  was  afterward  re-enacted  by  an  act  entitled 
*"An  act  to  amend  the  charter  of  the  city  of  Poughkeepsie, 
and  to  consolidate  with  it  other  acts  relating  to  said  city  ;" 
passed  May  20,  1874:  being  chapter  497  of  the  Laws  of  1874. 


56 


EXCISE  AND  HOTEL  LAWS. 


The  first  three  sections  above  being  respectively  sections  4, 
5  and  6  of  title  11  of  said  act.  except  that  the  charter  added 
the  words  in  italics  in  section  3,  and  again  enacted  in  an 
amended  charter  of  said  city,  sections  :>m*2.  ggg  alK|  904  of 
chapter  523  of  the  Laws  of  lrS3. 

^  76.  "City  of  Yonkers.— Portions  of  chapter  184.  1881.  en- 
titled 'An  act  to  revise  the  charter  <>f  the  city  of  Yonkers.' 

"The  mayor  shall  nominate  and.  with  the  consent  of  the 
common  council,  appoint  the  commissioners  of  excise  for 
the  city,  who  shall  hold  their  office  and  perform  all  the  du- 
ties enjoined  upon  commissioners  of  excise  as  provided  by 
law.    (Section  18.  title  11.) 

"The  common  council  shall  have  power  to  prohibit  the 
adulteration  of  wines,  liquors,  ales,  drugs,  milk,  food  and 
provisions  sold  or  exposed  for  sale,  and  the  selling  or  giving 
away  to  be  drank  of  any  intoxicating  liquors  to  any  person 
under  eighteen  years  of  age.  (Subdivision  *2*2.  section  6, 
title  6.) 

"All  laws  now  in  force  not  inconsistent  with  the  provisions 
of  this  act,  applicable  to  overseers  of  the  poor  in  towns,  shall 
apply  to  the  commissioner  of  charities,  and  such  commis- 
sioner of  charities  shall  have  and  possess  all  powers  which 
overseers  of  the  poor  of  towns  now  have,  or  which  may  here- 
after be  conferred  upon  them.    (  Section  1,  title  10.  | 

"The  mayor,  any  alderman  or  any  police  officer  shall  have 
power,  at  all  times,  to  arrest  or  cause  to  be  arrested,  with  or 
without  process,  any  person  who  shall  sell  or  give  away 
strong  or  spirituous  liquors,  wines,  ale  or  beer,  within  the 
limits  of  the  city,  contrary  to  law  ;  habitual  drunkards ; 
persons  found  intoxicated  in  the  streets,  or  engaged  in  quar- 
reling or  righting,  or  immoderate  riding  or  driving,  or  doing 
anything  calculated  to  endanger  persons  or  property  in  any 
of  the  streets  or  public  places  :  persons  refusing  to  assist  in 
the  extinguishment  of  fires,  or  to  aid  in  protecting  property 
thereat :  vagrants,  mendicants,  beggars,  common  prostitutes, 
gamblers,  persons  gathered  upon  the  public  streets  who  re- 
fuse to  disperse  when  commanded  by  any  such  officer  so  to  do, 
in  addition  to  those  enumerated  persons  in  the  first  section 
of  title  5.  chapter  20  of  the  first  part  of  the  Eevised  Statutes, 
all  of  whom  shall  be  deemed  disorderly  persons.    The  said 


EXCISE  AND  HOTEL  LAWS. 


57 


officers  shall  have  power,  with  or  without  process,  while  in 
pursuit  of  such  disorderly  persons,  to  enter,  or  cause  to  be 
entered,  any  building  or  place,  and  upon  the  arrest  of  any 
such  person  to  take  him  before  the  city  judge,  to  be  dealt 
with  according  to  law.  In  case  the  city  judge  for  the  time 
being  cannot  be  found,  the  officer  arresting  any  such  offender 
may  detain  him  in  custody,  or  commit  him  to  the  county 
jail,  or  any  other  convenient  place  of  safe  keeping,  until 
such  city  judge  can  be  found,  not  to  exceed  twenty-four 
hours.  Any  such  officer  shall  have  power  to  command 
assistance  whenever  he  shall  deem  it  necessary."  (Section 
11,  title  11.) 

By  section  32  of  title  3,  all  penalties,  fines,  claim  or  other 
money  received  by  the  commissioners  of  excise  must  be 
paid  into  the  city  treasury  on  or  before  the  last  day  of  the 
month  in  which  received. 

§  77.  "City  of  Lockport — 'An  act  to  authorize  the  com- 
missioners of  excise  for  the  city  of  Lockport  to  be  elected 
at  the  same  time  and  in  the  same  manner  as  other  city  offi- 
cers are  elected,  instead  of  being  appointed  by  the  mayor 
passed  May  13,  1881. 

"Sec.  1.  Heieafter  the  commissioners  of  excise  for  the 
city  of  Lockport,  instead  of  being  appointed  by  the  mayor, 
shall  be  elected  at  the  same  time  and  in  the  same  manner  as 
other  city  officers  are  elected.  At  the  annual  election  to  be 
held  in  and  for  said  city  of  Lockport,  on  the  second  Tuesday 
of  April,  in  the  year  1882,  there  shall  be  elected  three  com- 
missioners of  excise,  who,  while  acting  as  such  commission- 
ers, shall  not  hold  any  other  city  or  ward  office,  and  who 
shall  compose  the  board  of  excise  of  said  city,  and  discharge 
the  duties  imposed  upon  the  present  board  of  excise  of  said 
city  by  chapter  175  of  the  session  laws  for  the  year  1870,  and 
the  laws  amendatory  thereof  and  supplementary  thereto  ; 
and  shall  be  entitled  to  receive  compensation  at  the  rate  of 
three  dollars  per  day  while  in  session  as  a  board  of  excise, 
which  shall  be  a  city  charge.  The  commissioners  first  elected 
under  this  act  shall  be  classified  by  lot,  under  the  superin- 
tendence of  the  mayor,  or  in  case  of  his  absence,  of  the  city 
clerk  of  said  city  of  Lockport,  w  ho  shall  attend  at  the  office 
of  the  city  clerk  of  said  city  for  such  purpose,  within  ten 


58 


EXCISE  AND  HOTEL  LAWS. 


days  after  such  election,  and  the  persons  drawing  for  one, 
two  and  three  years  shall  serve  for  such  term  respectively  ; 
and  annually  thereafter  one  commissioner  of  excise  shall  be 
elected  for  a  term  of  three  years.  The  present  commission- 
ers of  excise  in  said  city  of  Lockport,  and  all  who  may  be 
hereafter  appointed  prior  to  the  first  election  under  this  act, 
shall  only  hold  their  office  until  commissioners  of  excise 
shall  be  elected  under  this  act  and  shall  have  duly  qualified, 
when  their  term  of  office  shall  end.  Vacancies  occurring  in 
said  board,  so  to  be  elected,  from  any  cause,  other  than  ex- 
piration of  term  of  office,  shall  be  filled  by  appointment  by 
the  mayor  of  the  city  of  Lockport  until  the  next  annual 
election  for  city  officers,  when  such  vacancies  shall  be  filled 
by  election. 

"Sec.  2.  The  said  commissioners  shall  be  voted  for  upon 
a  separate  ballot,  which  shall  be  deposited  in  a  separate  box, 
marked  'excise;'  and  before  entering  upon  the  duties  of 
their  offices  shall  each,  severally,  take  and  subscribe  the  con- 
stitutional oath  of  office,  and  file  the  snme  with  the  city  clerk 
of  said  city  of  Lockport,  and  shall  execute  a  bond  with 
sureties  to  the  treasurer  of  the  said  city,  to  be  approved  by 
him,  in  the  penal  sum  of  $3,000,  conditioned  for  paying  over 
to  him  or  his  immediate  successor  in  office,  within  thirty 
days  after  the  receipt  thereof,  all  moneys  received  by  them 
as  such  excise  commissioners.  Said  moneys  shall  be  dis- 
posed of  by  the  common  council  of  said  city  in  supporting 
the  poor  of  said  city. 

"  Sec.  3.  Nothing  in  this  act  shall  affect  the  provisions  of 
any  special  act  in  so  far  as  the  same  provides  for  any  special 
disposition  of  excise  moneys  or  fines. 

"Sec.  4.  All  acts  or  parts  of  acts  inconsistent  with  this 
act,  so  far  as  they  relate  to  the  city  of  Lockport  and  the  com- 
missioners of  excise  thereof,  are  hereby  repealed."  (Chapter 
269  of  the  Laws  of  1881.) 

§78.  "City  of  Rochester. — The  common  council  shall 
have  power  to  make,  modify  and  repeal  such  ordinances, 
by-laws  and  regulations  as  it  may  deem  desirable  ;  to  forbid 
and  prevent  the  vending  or  other  disposition  of  liquors  and 
intoxicating  drinks  to  be  drank  in  any  canal  boat,  store  or 
other  place  not  duly  licensed  ;  and  to  forbid  the  selling,  or 


EXCISE  AND  HOTEL  LAWS. 


59 


giving  to  be  drank,  any  intoxicating  liquors  to  any  child 
or  young  person,  without  the  consent  of  his  or  her  parents 
or  guardian.  (Subdivision  3,  section  40,  chapter  14,  1880.) 
To  restrain  and  punish  drunkards,  vagrants,  mendicants, 
street  beggars,  and  persons  soliciting  alms  or  subscriptions 
for  any  purpose  whatever.    (Subdivision  1 1,  id.) 

"The  commissioners  of  excise  of  the  said  city  shall  make 
a  report  in  writing  every  month  to  the  common  council, 
signed  by  such  commissioners  and  verified  by  their  oath, 
and  shall  deliver  such  report  so  verified  to  the  city  clerk, 
before  the  last  day  of  the  month,  which  report  shall  contain 
a  full,  true  and  detailed  statement  of  all  moneys  received  by 
them  and  not  before  reported  as  hereby  required,  with  the 
date  and  amount  of  each  and  every  item  of  money  received, 
and  the  name  and  place  of  business  of  each  and  every  per- 
son licensed  (not  before  reported  as  aforesaid),  and  the 
amount  charged  in  each  case.  With  every  such  report  shall 
be  the  city  treasurer's  receipt,  showing  that  the  full  amount 
of  moneys  so  reported  have  been  paid  to  him.  A  like  veri- 
fied report  shall  be  made  and  bear  date  on  the  Saturday 
next  before  the  first  Monday  of  May  in  each  year,  and  shall 
be  delivered  to  the  city  clerk  with  the  treasurer  s  receipt  as 
aforesaid  within  two  days  thereafter."    (Section  59,  id.) 

By  section  236  of  said  chapter,  the  mayor  and  aldermen 
of  the  said  city,  by  virtue  of  their  offices,  shall  be  overseers 
of  the  poor  for  the  said  city,  and  shall  possess  all  the  powers 
and  authority  of  overseers  of  the  poor  in  the  several  towns 
in  this  State,  in  relation  to  the  care  of  habitual  drunkards; 
the  binding  out  and  contracting  for  the  service  of  disorderly 
persons  ;  and  all  such  other  powers  as  are  conferred  on 
overseers  of  the  poor  in  the  respective  towns,  and  shall  be 
subject  to  the  same  duties,  obligations  and  liabilities. 

§79.  "City  of  Troy.— Portions  of  chapter  328,  1880,  en- 
titled 'An  act  to  establish  and  maintain  a  police  force  in  the 
city  of  Troy.' 

"Sec.  1.  For  the  purpose  of  establishing  and  maintaining 
a  body  of  police  in  the  city  of  Troy,  there  shall  be  consti- 
tuted a  board  of  police  commissioners  and  a  police  force  as 
herein  provided. 

"  Sec.  11.  The  said  board  of  police  commissioners  shall  be, 


60 


EXCISE  AND  HOTEL  LAWS 


by  virtue  of  their  office,  commissioners  of  excise  and  the 
board  of  commissioners  of  excise  of  the  city  of  Troy,  and 
shall  possess  the  powers  conferred  and  discharge  the  duties 
imposed  upon  boards  of  commissioners  of  excise  in  cities 
by  law,  and  there  shall  be  no  other  board  of  commissioners 
of  excise  in  said  city.  All  fees  for  licenses  issued  by  said 
board  of  commissioners  of  excise  of  said  city,  provided  for 
by  law.  shall  be  collected  and  received  by  said  board  of 
commissioners  of  excise  of  said  city,  and  shall  be  paid  to 
the  chamberlain  of  said  city  of  Troy  monthly,  for  the  use 
and  benefit  of  the  poor  fund  of  said  city,  and  toward  pay- 
ing the  expense  of  maintaining  the  poor  of  said  city.  The 
penalties  imposed  by  law  for  the  sale  of  strong  or  spirituous 
liquors,  wines,  ales  or  beer  without  having  a  license  there- 
for, shall  be  sued  for  and  recovered  by  and  in  the  name  of 
the  board  of  commissioners  of  excise  of  the  city  of  Troy, 
and  on  their  recovery  shall  be  paid  to  the  officer  at  the 
time*,  and  for  the  use.  benefit  and  purpose  aforesaid.  The 
said  board  shall  have  power  to  employ  attorneys  and  coun- 
sel to  prosecute  actions  for  the  recovery  of  said  penalties, 
and  to  audit  the  fees,  costs  and  disbursements  of  such  attor- 
neys and  counsel  ;  and  the  chamberlain  of  the  city  of  Troy 
shall  pay  such  audits  out  of  the  moneys  received  by  him 
as  aforesaid.  'J  lie  said  board  of  commissioners  of  excise 
shall  have  power  to  appoint  a  clerk  of  said  board  at  an 
annual  salary  not  exceeding  $1,000,  payable  monthly.  On 
the  first  Monday  of  May,  1881,  at  twelve  o'clock,  noon,  the 
term  of  office  and  the  powers  and  duties  of  the  person  ap- 
pointed to  said  last-mentioned  office,  pursuant  to  the  pro- 
visions of  this  section,  prior  to  the  fourth  Monday  of  April, 
1881,  shall  cease  and  terminate,  and  such  person  shall  be 
discharged  from  duty.  On  the  fourth  Monday  of  April, 
1881.  or  within  five  days  thereafter,  the  said  board  of  com- 
missioners of  excise  shall  appoint  a  suitable  person  to  the 
office  of  clerk  of  said  board,  whose  term  of  office  shall  begin 
on  the  first  Monday  of  May.  1881.  at  twelve  o'clock  noon. 
No  compensation  shall  be  paid  to  said  })olice  commissioners 
for  acting  as  such  commissioners  of  excise."  (As  amended 
by  section  '2,  chapter  76,  1881.') 

§  80.  City  of  Brooklyn. — By  chapter  803  of  the  Laws 


EXCISE  AND  HOTEL  LAWS. 


61 


of  1873,  the  police  and  excise  boards  of  the  city  of  Brook- 
lyn, were  almost  inexplicably  interwoven.  But  by  chapter 
377,  of  the  Laws  of  1880,  they  were  so  far  separated  as  to 
have  two  commissioners  of  excise,  although  the  commis- 
sioner of  police  and  excise  is  still  the  president  of  the  board 
of  excise. 

Section  1,  title  11  of  chapter  863,  1873.  declares  that  there 
shall  be  a  department  of  police  and  excise,  to  consist  of  a 
president  and  two  commissioners  of  police  and  excise.  By 
that  act  the  mayor  appointed  them  with  the  consent  of  the 
board  of  aldermen. 

By  chapter  377,  1880,  it  became  the  duty  of  the  mayor 
and  comptroller  to  appoint  "a  proper  person  to  be  commis- 
sioner of  police  and  excise,  and  also  two  proper  persons  to 
be  commissioners  of  excise."  They  failing  to  agree,  the 
mayor  alone  was  to  appoint.  Each  commissioner  so  ap- 
pointed was  to  take  the  oath  of  office  and  file  his  bond. 
Since  January  1, 1882,  the  mayor  alone  has  had  the  appoint- 
ing power  ;  the  commissioners  to  hold  their  office  two  years 
at  a  salary  of  $2,000  per  year  each. 

As  now  constituted,  the  board  of  commissioners  of  ex- 
cise of  said  city  consists  of  the  commissioner  of  police  and 
excise  as  president,  and  two  commissioners  of  excise. 

By  section  58,  title  11,  chapter  863,  1873,  the  said  board 
possesses  the  same  powers,  and  is  subject  to  the  same  duties, 
as  are  imposed  by  the  general  State  laws.  The  said  board 
provides  for  the  granting,  decides  who  shall  have,  and  the 
amount  to  be  paid  for  license,  and  subject  to  the  direction 
of  the  common  council,  provides  regulations  under  which 
the  persons  licensed  shall  sell.  The  common  council  have 
the  right  to  decide  as  to  manner  and  form  of  license. 

It  is  the  duty  of  the  said  board  to  enforce  the  excise 
law  and  the  ordinances  of  the  common  council  in  relation 
thereto,  and  to  report  all  violations  to  the  law  department 
immediately  with  the  evidence.  Fifteen  per  cent  of  the 
license  money,  if  needed,  is  to  be  paid  over  to  the  inebriates 
home  for  Kings  county  ;  also  all  fines  for  intoxication  and 
violations  of  the  excise  law,  and  the  balance  of  the  excise 
money  goes  to  the  city. 


62 


EXCISE  AND  HOTEL  LAWS. 


It  is  made  the  duty  of  the  attorney  and  counsel  for  the 
city  to  prosecute  actions  for  fines  and  penalties. 

The  substance,  rather  than  the  letter,  of  the  excise  law  ap- 
plicable to  the  city  of  Brooklyn,  has  been  given  rather  than 
take  up  so  much  space  needlessly  with  a  large  amount  of 
laws  for  the  city  government,  which  are  interwoven  with  it, 
but  not  necessary  t<>  be  given  in  this  work. 

§81.  -'City  of 1 Buffalo.  —Portions  of  chapter  430  of  the 
Laws  of  188<>,  entitled  cAn  act  to  establish  a  police  depart- 
ment in  the  city  of  Buffalo,  and  to  provide  for  the  govern- 
ment thereof.'  passed  May  27,  1880. 

"  From  and  after  the  time  when  the  board  of  police  cre- 
ated and  established  by  this  act  shall  enter  upon  the  duties 
of  their  office,  the  said  board  of  police  shall  be  the  board 
of  commissioners  of  excise  in  and  for  the  city  of  Buffalo, 
with  all  the  powers  conferred  by  chapter  L75  of  the  Laws  of 
1870.  upon  boards  of  excise  in  cities,  and  subject  to  all  the 
provisions  of  said  chapter,  and  there  shall  be  no  other 
board  of  excise  in  said  city.  Said  board  shall  have  power 
and  authority  to  revoke  any  licenses  granted  by  them,  or 
by  their  immediate  predecessors  in  office,  whenever  it  shall 
appear  to  their  satisfaction  that  the  person  to  whom  such 
license  shall  have  been  granted  is  not  a  person  of  good 
moral  character,  or  that  such  person  permits  the  premises 
in  which  liquor  is  sold,  pursuant  to  such  license,  to  become 
disorderly,  or  anything  to  be  done  or  committed  therein  or 
thereon  contrary  to  peace  or  good  order.  All  fees  for  li- 
censes which  shall  be  issued  by  said  board  of  police,  acting 
as  such  board  of  commissioners  of  excise  in  the  city  of 
Buffalo,  and  all  fines  and  penalties  provided  for  by  said 
chapter,  shall  be  paid  to  and  received  by  the  clerk  of  the 
said  board  of  commissioners  of  excise  (  which  clerk  the  said 
board  of  police  acting  as  a  board  of  commissioners  of  ex- 
cise is  hereby  authorized  to  appoint),  and  be  by  said  clerk 
paid,  daily,  to  the  treasurer  of  the  city  of  Buffalo,  and  by 
said  treasurer  credited  to  the  police  fund  of  said  city  for 
the  use  and  benefit  thereof,  and  applied  in  payment  of  the 
expenses  of  the  police  department  created  and  established 
by  tins  act.  The  said  clerk  of  the  board  of  commissioners 
of  excise  shall,  before  he  enters  upon  the  duties  of  his  office, 


EXCISE  AND  HOTEL  LAWS. 


63 


execute  and  tile  with  the  city  clerk  of  the  city  of  Buffalo  a 
bond,  in  the  penal  sum  of  $10,000,  with  two  or  more  suffi- 
cient sureties,  to  be  approved  by  the  mayor  of  said  city, 
conditioned  for  the  faithful  discharge  of  his  duties  as  such 
clerk,  and  for  the  accounting  for  and  paying  over  to  the 
treasurer  of  the  city  of  Buffalo  all  moneys  which  shall  come 
into  his  hands,  or  under  his  control  as  such  clerk.  Said 
bond  shall  be  to  the  city  of  Buffalo  as  the  obligee  therein, 
and  said  city  may  maintain  an  action  against  the  said  clerk 
and  his  sureties  on  said  bond  for  any  breach  of  the  condi- 
tions of  said  bond.  The  said  board  may  remove  said  clerk 
from  office  at  pleasure.    (Section  42,  id.) 

The  justices  to  the  police  in  said  city,  shall  have  power 
to  try  cases  of  drunkenness.  All  fines  and  penalties  im- 
posed by  any  or  either  of  said  justices  to  the  police,  shall 
be  paid  over  every  week  to  the  treasurer  of  the  city  of  Buf- 
falo/'   (Part  of  section  23,  id.) 

§82.  "Town  of  Haverstraw,  Rockland  county — cAn  act 
in  relation  to  the  temporary  relief  of  the  poor  in  the  town 
of  Haverstraw,  Rockland  county,'  passed  March  11,  1879. 

"  Sec.  8.  All  persons  are  hereby  forbidden  from  selling  or 
giving  any  wine,  spirituous  or  intoxicating  liquors  of  any 
description,  to  or  for  any  person  whom  they  shall  know  or 
have  reason  to  believe  to  have  received  aid  for  himself  or 
family  from  the  overseer  of  the  poor  of  said  town,  who 
or  whose  family  is  or  are  at  all  dependent  upon  the  over- 
seer of  the  poor  of  said  town  for  relief  or  support.  Any 
person  offending  against  the  provisions  of  this  section  shall 
be  deemed  guilty  of  a  misdemeanor,  punishable  for  each 
offense  by  fine  not  exceeding  fifty  dollars,  or  by  imprison- 
ment in  the  county  jail  not  exceeding  three  months,  or  by 
both  such  fine  and  imprisonment.  Any  person  who,  upon 
an  order  or  request  of  an  overseer  of  the  poor  of  said  town 
to  furnish  supplies  for  the  relief  of  any  poor  person  or 
family,  shall  furnish  or  deliver  any  wines,  spirituous  or  in- 
toxicating liquors  of  any  kind  or  description,  shall  be  guilty 
of  a  misdemeanor,  punishable  by  a  tine  not  exceeding  $250, 
or  by  imprisonment  in  a  county  jail  not  exceeding  one 
year,  or  by  both  such  fine  and  imprisonment.  This  section 
shall  not  apply  where  the  wines,  spirituous  or  intoxicating 


64 


EXCISE  AND  HOTEL  LAWS. 


liquors  are  furnished  or  supplied  as  medicine,  in  case  of 
actual  sickness,  upon  the  written  certificate  of  the  attend- 
ing physician  of  its  necessity,  accompanying  the  order  of 
the  overseers  of  the  poor.  No  evidence  shall  be  received 
or  deemed  competent  or  sufficient  proof  of  the  fact,  except 
the  original  certificate  and  order  received,  taken  and  re- 
tained at  the  time  of  delivery. 

' '  Sec.  J  0.  Whenever,  upon  examination  by  the  overseer  of 
the  poor,  upon  any  application  for  relief,  he  shall  ascertain  or 
be  informed  that  the  destitution  rendering  such  relief  neces- 
sary is  in  part  or  wholly  attributable  to  the  intemperance  of 
the  person  applying,  or  of  any  member  of  the  family,  lie  shall 
give  notice  thereof  to  all  vendors  of  intoxicating  liquors  in 
the  town  or  vicinity,  and  forbid  the  sale  or  furnishing  to 
such  intemperate  person  of  any  wines  or  spirituous  liquors 
whatever.  He  shall  then  forthwith  enter  in  his  said  book 
a  memorandum  of  the  time  and  to  whom  such  notice  was 
given.  Whenever  the  overseer  of  the  poor  shall  ascertain, 
or  be  informed  of  the  sale  or  furnishing  any  wines  or  spiritu- 
ous liquors  to  any  poor  person  contrary  to  the  provisions  of 
this  act,  it  shall  be  his  duty  forthwith  to  enter  complaint 
therefor  and  have  the  offender  prosecuted.  This  require- 
ment, however,  shall  not  be  construed  to  prevent  any  citi- 
zen of  said  town  from  making  complaint,  and  procuring 
the  prosecution  and  conviction  of  any  offender  against  the 
provisions  of  this  act."  (Sections  8  and  10,  chapter  74, 
Laws  of  1879  ) 

§  83.  "Village  of  Medina.— Portions  of  chapter  39  of  the 
Laws  of  1874,  entitled  'An  act  to  reorganize  the  village  of 
Medina.' 

"The  board  of  trustees  shall  be  the  commissioners  of 
excise  of  said  village  of  Medina,  and  shall  possess  the  powers 
and  perform  the  duties  of  boards  of  commissioners  of  excise 
and  be  subject  to  the  excise  laws  of  this  State,  except  as 
modified  by  this  act.  They  shall  meet  but  one  day  in  each 
month.  The  compensation  of  each  commissioner  of  excise 
shall  be  two  dollars  for  each  day  of  actual  service.  Their 
expenses  for  necessary  books  and  blanks  shall  be  audited 
and  paid  as  other  village  charges.  (Section  1  of  title  6,  as 
amended  by  chapter  453,  1875.) 


EXCISE  AND  HOTEL  LAWS. 


65 


"The  hoard  of  trustees,  upon  application  being  made 
therefor,  may  grant  license  to  sell  or  dispose  of  malt,  spir- 
ituous or  intoxicating  liquors  within  said  village  of  Medina, 
for  the  period  of  one  year,  or  until  the  next  annual  charter 
election;  provided,  that  every  husband,  wife,  child,  parent, 
guardian  or  employer,  or  other  person  who  shall  be  injured 
in  person,  property  or  means  of  support  by  any  intoxicated 
person,  or  in  consequence  of  the  intoxication,  habitual  or 
otherwise,  of  any  person,  such  husband,  wife,  child,  parent, 
guardian,  employer  or  other  person,  shall  have  a  right  of 
action  in  his  or  her  name,  severally  or  jointly,  against  any 
person  or  persons  who  shall,  by  selling  or  giving  intoxicating 
liquors,  have  caused  the  intoxication  in  whole  or  in  part  of 
snch  person  or  persons,  and  the  owner  or  owne  rs  of,  lesse  or 
person  or  persons  renting  or  leasing  any  building  or  premi- 
ses, having  knowledge  that  intoxicating  liquors  are  to  be 
sold  therein,  or  having  leased  the  same  for  other  purposes 
shall  permit  intoxicating  liquors  to  be  sold  in  such  building 
or  premises,  that  have  produced  the  intoxication  in  whole  or 
in  part  of  such  person  or  persons,  shall  be  liable,  severally  or 
jointly  with  the  person  or  persons  selling  or  giving  such  in- 
toxicating liquors,  for  all  damages  sustained.  All  damages 
and  costs  assessed  or  recovered  against  any  person  or  per- 
sons in  consequence  of  the  sale  of  intoxicating  liquors,  as 
provided  in  this  section,  shall  be  a  lien  npon  real  estate  and 
personal  property  of  such  person  or  persons  of  every  kind, 
without  exception  or  exemption,  and  shall  continue  to  be  a 
lien  upon  the  said  property  until  said  damages  and  costs  are 
paid,  and  any  justice  of  the  peace  of  said  county  of  Orleans 
shall  have  jurisdiction  of  snch  actions  when  the  amount 
claimed  does  not  exceed  $200.    (Section  2  of  title  6,  id.) 

'  'All  habitual  drunkards  in  said  village  shall  be  deemed 
vagrants  under  the  provisions  of  the  second  title  of  the 
twentieth  chapter  of  the  first  part  of  the  Revised  Statutes, 
and  may  be  proceeded  against  accordingly ;  and  in  addi- 
tion to  the  persons  mentioned  and  described  in  the  fifth 
title  in  the  twentieth  chapter  of  the  first  part  of  the  Revised 
Statutes,  all  persons  who  shall  be  intoxicated  in  said  village 
under  such  circumstances  as  to  amount  to  a  violation  of  the 

public  decency ;  all  persons  who  shall  sell  intoxicating 

5 


66 


EXCISE  AND  HOTEL  LAWS. 


liquors  without  a  license  in  said  village,  shall  be  deemed 
and  are  hereby  declared  disorderly  persons  in  said  village, 
and  shall  be  proceeded  against  and  punished  accordingly  ; 
and  any  person  charged  with  any  offense  specified  in  this 
section  which  is.  by  existing  law,  a  crime  or  misdemeanor, 
may  be  proceeded  against  under  the  present  or  existing 
provisions  of  law,  or  under  the  provisions  of  this  act." 
(Part  of  section  3,  title  5,  id.) 

§  84.  "Allegany  county — 'An  act  providing  for  the  dis- 
posal of  excise  moneys  in  the  county  of  Allegany."  passed 
April  8,  1871.' 

"Sec.  1.  As  long  as  the  poor  of  the  county  of  Allegany 
shall  be  supported  by  the  county  at  large,  all  moneys  de- 
rived from  excise  licenses  and  fines,  in  any  town  or  village 
of  said  county,  pursuant  to  chapter  175  of  the  Laws  of 
1870,  entitled  'An  act  regulating  the  sale  of  intoxicating 
liquors,'  and  all  acts  amendatory  thereof,  shall  be  deposited 
with  the  county  treasurer  of  said  county,  within  thirty 
days  after  receiving  the  same,  to  be  expended  under  the 
direction  of  the  board  of  supervisors  of  said  county,  at 
their  next  annual  meeting,  for  the  support  of  the  poor  of 
said  county. 

"  Sec.  2.  All  provisions  of  chapter  175  of  the  Laws  of  187<>, 
inconsistent  herewith,  are  hereby  repealed,  in  so  far  as  the 
same  apply  to  the  county  of  Allegany.' '  (Chapter  380  of 
the  Laws  of  1871.) 

§  85.  Richmond  county. — Chapter  297,  1373,  entitled  'An 
act  for  the  benefit  of  common  schools  in  the  county  of  Rich- 
mond,' passed  April  25,  1873. 

uSec.  1.  All  moneys  collected  in  the  county  of  Richmond 
for  and  on  account  of  licenses,  penalties  and  fines  for  the 
sale  of  liquors,  and  all  moneys  which  have  been  heretofore 
collected  for  licenses,  penalties  and  fines  for  the  sale  of 
liquors  in  said  county  and  now  in  the  hands  of  supervisors, 
or  any  of  them,  or  in  the  treasury  of  said  county,  shall  be 
paid  over  to  the  treasurer  of  the  said  county  for  the  benefit 
of  common  schools  in  the  said  county  ;  said  moneys  to  be 
apportioned  by  the  school  commissioner  of  said  county 
among  the  several  school  districts  thereof,  and  paid  by  the 
county  treasurer  upon  the  order  of  the  school  commissioner 


EXCISE  AND  HOTEL  LAWS. 


07 


to  the  proper  school  officers  authorized  to  receive  the  same, 
in  the  same  manner  as  prescribed  for  the  apportionment  and 
distribution  of  school  moneys  received  from  the  State  ;  pro- 
vided, however,  that  all  the  moneys  collected  in  and  received 
from  each  town  in  said  county  shall  be  distributed  and  ap- 
portioned among  the  several  school  districts  in  each  town 
respectively. 

"See.  2.  The  village  of  Port  Richmond,  in  said  county,  is 
hereby  excepted  from  all  th*1  provisions  of  this  act." 

§  86.  "City  of  New  York.— Portions  of  chapter  410, 1882, 
entitled  'An  act  to  consolidate  into  one  act  and  to  declare 
the  special  and  local  laws  affecting  public  interests  in  the 
city  of  New  York  :'  passed  July  1.  1882. 

"  Sec.  109.  The  mayor  shall,  on  the  first  Monday  of  Apiil, 
1883,  and  in  every  third  year,  nominate  to  the  board  of  ald- 
ermen three  good  and  responsible  citizens  to  be  commis- 
sioners of  excise.  Said  board  shall  confirm  or  reject  such 
nominations.  In  case  of  the  rejection  of  such  nominees,  or 
any  of  them,  the  mayor  shall  nominate  other  persons  as 
aforesaid,  and  shall  continue  so  to  nominate  until  the  nomi- 
nations shall  be  confirmed.  The  terms  of  office  of  such  per- 
sons shall  commence  on  the  first  day  of  May  succeeding  the 
date  herein  fixed  for  their  nomination.  Any  person  ap- 
pointed after  the  commencement  of  the  term,  as  herein 
prescribed,  shall  hold  only  until  the  expiration  of  such  term 
and  until  a  successor  is  duly  appointed  and  qualified.  Any 
one  or  more  of  the  commissioners  so  appointed  shall  have  the 
power  to  act  as  a  board  of  excise  until  the  others  shall  be 
duly  appointed.  They  shall,  except  as  herein  otherwise 
provided,  hold  their  offices  for  three  years  and  until  others 
shall  be  appointed  in  their  places  and  have  qualified.  The 
mayor  shall,  from  time  to  time,  as  often  as  vacancies  shall 
occur,  appoint  persons  qualified,  as  aforesaid,  to  fill  the  un- 
expired term  of  any  commissioner  who  shall  die,  resign, 
remove  from  the  city,  or  be  removed  from  office.  Commis- 
sioners of  excise  shall  be  removed  for  any  neglect  or  mal- 
feasance in  office,  in  the  same  manner  as  provided  by  law 
for  the  removal  of  sheriffs. 

"  Sec.  86.  The  common  council  shall  have  power  to  make 
ordinances, — in  relation  to  intoxication,  fighting  and  quar- 


68 


EXCISE  AND  HOTEL  LAWS. 


reling  in  the  streets.  (Subdivision  13.)  And  for  regulating 
boarding-houses  and  taverns,  and  preventing  the  resort  of 
crowds  of  disorderly  persons  to  them.    (Subdivision  34.) 

"  Sec.  208.  There  shall  be  paid  annually  out  of  the  excise 
moneys  of  the  city  of  New  York,  to  the  Home  for  Fallen 
and  Friendless  Girls  in  said  city,  the  sum  of  $150,  for  the 
support  of  every  fallen  and  friendless  airl  received  and  sup- 
ported by  said  corporation  in  their  Home  for  Fallen  and 
Friendless  Girls  for  the  year  for  which  such  payment  shall 
be  made,  and  a  proportional  sum  for  a  shorter  period  in  the 
same  year. 

"Sec.  210.  Said  board  of  estimate  and  apportionment  is 
authorized,  from  time  to  time,  and  in  sums  according  to  its 
discretion,  by  resolution  of  said  board,  to  appropriate  all 
excise  moneys  derived  by  the  excise  commissioners  in  said 
city  from  licenses  for  the  sale  of  intoxicating  liquors,  to 
such  benevolent  or  charitable  institutions  in  said  city  which 
shall  gratuitously  aid,  support  or  assist  the  poor  thereof  as 
may  seem  to  said  board  deserving  or  proper;  but  no  such 
resolution  shall  be  valid  unless  adopted  by  a  majority  vote 
of  all  the  members  of  said  board  ;  and  the  comptroller  shall 
draw  his  warrants  in  favor  of  suoh  institutions  respectively 
mentioned  in  such  resolutions  according  to  the  tenor  thereof, 
and  the  chamberlain  shall  pay  such  warrants  out  of  the  said 
moneys  received  for  licenses.  The  term  'poor,'  as  used  in 
this  section,  shall  only  include  persons  who  would  other- 
wise become  a  charge  upon  said  city  as  foundlings,  orphans, 
and  such  prostituted  or  fallen  women  or  juvenile  delinquents 
as  may  be  committed  to  or  cared  for  gratuituosly,  in  or  by 
any  refoimatory  institution,  protectory,  or  juvenile  asylum, 
persons  who  are  supported,  relieved,  or  cared  for  gratui- 
tuosly in  or  by  any  charitable  institution  for  the  care  or 
relief  of  the  ruptured  or  crippled,  the  cure  of  hip  or  spinal 
diseases,  the  sick  or  the  destitute,  friendless  or  infirm,  in- 
cluding the  children  of  volunteers  dying  in  the  late  civil  war, 
and  the  care  and  instruction  of  idiots,  the  deaf  and  dumb, 
the  blind  and  the  insane.  No  payments  shall  be  made  in 
pursuance  of  this  section  except  as  a  per  capita  allowance 
for  the  poor  and  destitute  persons  actually  supported, 
treated,  cared  for,  or  educated  in  the  institutions  referred 


EXCISE  AND  HOTEL  LAWS. 


69 


to  in  this  section,  except  in  the  case  of  the  American  Female 
•Guardian  Society  and  Home  for  the  Friendless,  the  Chil- 
dren's Aid  Society,  and  the  Shepherd's  Fold  of  the  Protest- 
ant Episcopal  Church,  which  shall  severally  receive  only 
the  same  amounts  as  provided  by  other  provisions  of  law. 

44  Sec.  391.  The  board  of  public  charities  and  correction 
are  authorized  and  empowered  to  maintain,  manage  and 
control  an  asylum  for  inebriates  erected  on  land  belonging 
to  the  city  and  under  their  control,  and  the  appurtenances 
thereto,  as  in  the  judgment  of  said  commissioners  may  be 
necessary  and  proper.  The  said  board  are  also  authorized 
and  empowered  to  appoint  and  employ  all  such  physicians, 
surgeons,  officers  and  attendants  as  may  be  necessary  and 
proper  for  the  management  and  direction  of  said  asylum, 
and  the  care  of  the  inmates  thereof,  and  to  fix  the  compen- 
sation of  such  employees  in  the  same  manner  and  with  the 
same  power  as  in  respect  to  the  persons  employed  in  other 
institutions  under  the  control  of  said  board. 

"Sec.  392.  The  necessary  expense  of  maintaining  such 
asylum,  and  its  appurtenances,  shall  be  provided  for  in  the 
same  manner  as  the  expenses  of  the  other  institutions  under 
the  control  of  the  said  commissioner.  The  said  board  are 
authorized  to  demand  and  receive  all  fines  imposed  for  in- 
toxication or  disorderly  conduct  in  the  city  of  New  York, 
which  fines,  without  any  deduction,  shall  be  paid  over 
monthly  by  the  magistrate,  clerk  or  other  person  who  re- 
ceives the  same,  to  the  said  board,  and  shall  be  by  it  ap- 
plied and  accounted  for  as  other  moneys  received  by  it  by 
virtue  of  this  chapter. 

"Sec.  393  The  said  board  shall  make  all  needful  rules 
and  regulations  for  the  government  of  said  asylum,  and  shall 
provide  for  the  proper  support  and  maintenance  of  the  in- 
mates thereof,  and  especially  for  such  medical  treatment  as 
will  be  effectual  for,  or  tend  to  the  curing  of,  such  inmates 
of  the  habit  of  inebriety  and  diseases  induced  thereby;  and 
they  shall  have  full  power  and  authority  to  regulate  and 
control  the  inmates  of  said  asylum,  and  to  establish  such 
provisions  for  moral  and  sanitary  discipline  as  they  may 
deem  expedient. 

"Sec.  394.  The  estate  of  any  person  committed  to  such 


70 


EXCISE  AND  HOTEL  LAWS. 


asylum,  and  the  person  committed,  shall  l>e  liable  for  the 
support  of  such  person  therein,  and  the  committee  of  every 
such  person  shall  pay  out  of  his  estate  such  reasonable  and 
proper  sum  as  shall  be  fixed  by  the  justice  or  judge  order- 
ing the  commitment.  The  said  board  of  public  charities 
and  correction  shall  have  authority  to  bring  and  maintain 
actions,  in  any  court  of  competent  jurisdiction,  against  the 
committee  or  guardians  of  the  estate  of  any  person  com- 
mitted to  said  asylum  as  aforesaid,  or  against  any  person, 
so  committed,  for  the  support  and  maintenance  of  such 
person  while  in  said  asylum.  Such  actions  may  be  brought 
by  said  board  in  the  name  of  the  mayor*  aldermen  and 
commonalty  of  the  city  of  New  York,  and  all  recoveries 
had  in  such  actions  shall  inure  to  the  city  of  New  York, 
and  all  amounts  collected  thereon  shall  be  received  by  said 
board,  and  accounted  for  in  the  same  manner  as  all  other 
moneys  which  it  is  by  law  authorized  to  receive. 

"  Sec.  395.  It  shall  be  lawful  for  the  said  board  of  chari- 
ties and  correction  to  transfer  from  the  alms-house  and 
work-house  under  their  control,  to  said  inebriate  asylum, 
any  person  committed  to  the  alms-house  or  work-house, 
who,  in  the  judgment  of  said  board,  shall  be  fit  and  proper 
subjects  for  said  asylum,  and,  in  their  discretion,  to  return 
such  persons  to  the  alms-house  or  work -house ;  provided, 
however,  that  no  person  shall,  by  reason  of  such  transfer, 
be  restrained  of  his  liberty  for  a  longer  term  than  required 
by  his  original  sentence  or  commitment. 

4kSec.  413.  It  shall  be  lawful  for  the  said  board,  and  it 
shall  have  power,  in  relation  to  all  persons  who  shall  here- 
after be  committed  to  any  institution  under  their  charge  as 
vagrants,  by  reason  of  their  being  'persons  who  shall  have 
contracted  an  infectious  or  other  disease  in  the  practice  of 
drunkenness  or  debauchery,  requiring  charitable  aid  To  re- 
store them  to  health,'  after  the  same  shall  have  been  under 
medical  treatment  sufficiently  cured  to  be  discharged  or  to 
work  or  labor,  in  their  discretion  to  detain  such  person  or 
persons,  and  transfer  or  commit  them  to  the  work-house 
until,  from  the  proceeds  of  their  work  and  labor,  there  shall 
have  been  received  by  said  board,  beyond  the  charge  of  their 
support  while  in  said  work-house,  a  sum  sufficient  to  reim- 


EXCISE  AND  HOTEL  LAWS. 


71 


burse  all  the  expenses  of  their  charge  and  cure  while  under 
medical  treatment  as  aforesaid,  provided  that  under  this 
section  no  such  person  shall  be  detained  or  committed  to 
said  work-house  for  a  longer  period  than  six  months. 

"Sec.  414.  The  said  commissioners  shall  not,  in  the  cases 
where  by  law  they  are  empowered  to  discharge  vagrants 
from  the  institutions  under  their  control,  hereafter  dis- 
charge any  of  said  vagrants  from  custody  before  the  ex- 
piration of  their  terms  of  imprisonment,  without  the  written 
consent  of  the  committing  magistrate  in  each  case. 

"Sec.  1098.  The  justices  of  the  Supreme  Court,  in  the 
exercise  of  their  jurisdiction  within  the  city  of  New  York, 
the  justices  of  the  superior  court  of  said  city,  and  the 
judges  of  the  court  of  common  pleas  in  and  for  the  county 
of  New  York  shall  have  power  to  commit  to  the  inebriate 
asylum,  under  the  control  of  the  commissioners  of  charities 
and  correction,  for  a  term  not  to  exceed  two  years,  all  per- 
sons who,  being  actual  inhabitants  of  the  said  city,  shall 
be  incapable  or  unfit  for  properly  conducting  their  own 
affairs  in  consequence  of  habitual  drunkenness.  Such  com- 
mitment shall  be  made  by  any  of  said  justices  or  judges,  in 
any  case  where  the  facts  referred  to  in  this  section  shall  be 
made  to  appear  by  petition  or  complaint,  duly  verified  and 
presented  by  any  relative  of  such  habitual  drunkard,  or  by 
the  commissioners  of  public  charities  and  correction,  or  any 
officer  of  the  police  doing  duty  within  the  said  city,  and 
upon  return  of  a  commission  issued  upon  such  petition  or 
complaint. 

"Sec.  1099.  Upon  the  presentation  of  such  petition  or 
complaint,  the  justice  or  judge  to  whom  the  same  shall  be 
presented  shall  proceed  in  the  same  manner  as  is  directed 
in  title  6  of  chapter  17  of  the  Code  of  Civil  Procedure,  in 
relation  to  the  care  and  custody  of  the  persons  and  estates 
of  idiots,  lunatics,  persons  of  unsound  mind  and  drunkards, 
and  according  to  the  rules  and  practice  of  the  Supreme 
Court  in  such  cases. 

"Sec.  1100.  Upon  becoming  satisfied,  by  return  of  a  com- 
mission as  heretofore  provided,  that  any  person  is  an 
habitual  drunkard  and  incapable,  in  consequence  thereof, 
of  conducting  his  or  her  own  affairs,  said  justice  or  judge 


72 


EXCISE  AND  HOTEL  LAWS. 


shall  have  power,  in  his  discretion,  to  issue  his  warrant, 
committing  the  person  so  found  to  be  an  habitual  drunkard 
to  the  custody  of  the  said  commissioners  of  public  chari- 
ties and  correction,  to  be  detained  in  the  said  asylum  for 
such  period,  not  exceeding  two  years,  as  the  said  justice  or 
judge  may  deem  proper,  and  such  warrant  shall  be  executed 
by  any  member  of  the  police,  upon  the  request  of  said  com- 
missioners, or  one  of  them.  Any  such  warrant,  duly  issued, 
shall  be  full  and  sufficient  justification  for  all  acts  done  by 
any  properly  authorized  officer,  under  and  in  accordance 
therewith. 

"Sec.  1101.  Any  justice  or  judge  before  whom  proceed- 
ings may  be  pending  under  the  three  preceeding  sections 
may,  after  filing  any  complaint,  and  when  in  his  judgment 
the  circumstances  of  the  case  render  it  proper  so  to  do,  com- 
mit the  person  charged  with  being  an  habitual  drunkard  to 
the  said  asylum  while  proceedings  on  such  complaint  are 
pending,  and  all  persons  so  temporarily  committed  shall  be 
discharged  from  said  asylum  if,  on  return  of  a  commission, 
it  shall  be  determined  that  they  are  not  proper  persons  to 
be  detained. 

"  Sec.  1102.  Any  person  committed  to  the  said  asylum, 
by  order  of  any  just  ice  or  judge  as  heretofore  provided,  may 
be  discharged  therefrom  at  any  time  before  the  expiration 
of  the  time  for  which  such  person  was  committed,  upon  the 
order  of  any  justice  or  judge  having  jurisdiction  as  herein 
provided,  upon  such  justice  or  judge  being  satisfied  that 
such,  person  is  cured  and  fit  to  be  released.  Application  for 
such  discharge  may  be  made  by  any  person,  provided,  how- 
ever, that  previous  notice  of  such  application  shall  be  given 
in  writing  to  the  said  commissioners  of  public  charities  and 
Correction.  Upon  any  such  application  being  made,  the 
justice  or  judge  receiving  the  same  shall  proceed  in  the 
same  manner  as  upon  writs  of  habeas  corpus. 

ktSec.  1464.  All  persons  who,  being  habitual  drunkards, 
are  destitute  and  without  visible  means  of  support,  or  who, 
being  such  habitual  drunkards,  shall  abandon,  neglect  or 
refuse  to  aid  in  the  support  of  their  families,  who  may  be 
com]  ..ained  of  by  such  families  ;  all  persons  who  shall  have 
contracted  an  infectious  or  other  disease  in  the  practice  of 


EXCISE  AND  HOTEL  LAWS. 


78 


drunkenness  or  debauchery  requiring  charitable  aid  tore- 
store  them  to  health,  shall  be  deemed  vagrants.  (Part  of 
section  only.) 

"Sec.  1465.  It  shall  be  the  duty  of  every  peace  officer, 
whenever  required  by  any  person,  to  carry,  convey  or  con- 
duct such  vagrant  before  the  recorder  or  one  of  the  police 
justices,  for  the  purpose  of  examination.  If  such  magis- 
trate be  satisfied  by  the  confession  of  the  offender  or  com- 
petent testimony  that  such  person  is  a  vagrant  within  the 
description  aforesaid,  he  shall  make  up  and  sign  a  .record 
of  conviction  thereof  which  shall  be  filed  in  the  office  of  the 
clerk  of  the  court  of  sessions,  and  shall  by  warrant,  under 
his  hand,  commit  such  vagrant,  if  not  a  notorious  offender, 
and  he  be  a  proper  object  for  such  relief,  to  the  alms-house 
for  any  time  not  exceeding  six  months,  there  to  be  kept  at 
hard  labor  ;  or,  if  the  offender  be  an  improper  person  to  be 
sent  to  the  alms-house,  then  such  person  shall  be  committed 
for  the  like  time  to  the  penitentiary. 

"Sec.  1562.  In  all  cases  of  arrest  for  intoxication  or  dis- 
orderly conduct  in  the  city  of  New  York,  the  police  justices 
shall  have  power,  in  addition  to  holding  the  party  to  bail 
for  good  behavior,  to  impose  a  fine  not  exceeding  ten  dol- 
lars in  each  case,  or  to  commit  to  the  city  prison  not  ex- 
ceeding ten  days,  each  day  of  imprisonment  to  be  taken  as 
a  liquidation  of  one  dollar  of  the  fine. 

"  Sees.  1998,  2010.  It  shall  not  be  lawful  to  sell  or  furnish 
any  wine,  beer  or  strong  or  spirituous  liquors  to  any  person 
in  the  auditorium  or  lobbies  of  any  place  of  exhibition  or 
performance,  or  in  an  apartment  connected  therewith  by 
any  door,  window  or  other  aperture,  where  any  interlude, 
tragedy,  comedy,  opera,  ballet,  play,  farce,  minstrelsy  or 
dancing,  or  any  other  entertainment  of  the  stage,  or  any 
equestrian,  circus  or  dramatic  performance,  or  any  perform- 
ance of  jugglers  or  rope  dancing  or  acrobats  is  exhibited. 
(Portions  of  above  sections.  ) 

"Sec.  2013.  It  shall  be  the  duty  of  the  superintendent  of 
police,  sheriff,  deputy- sheriff,  constable,  captain  of  police, 
policeman,  and  every  other  police  officer,  to  enter,  at  any 
time,  said  places  of  amusement,  and  to  arrest  and  convey 
any  person  or  persons  violating  any  provision  of  the  three 


74 


EXCISE  AND  HOTEL  LAWS. 


preceding  sections,'*  forthwith,  before  any  police  justice  or 
recorder  or  magistrate  having  jurisdiction  in  said  city,  there 
to  be  dealt  with  according  to  law. 

Incorporated  Villages. 

§  87.  By  chapter  291,  1870,  entitled  "An  act  for  the  incor- 
poration of  villages,"  all  persons  found  intoxicated  in  the 
streets  of  the  village,  or  persons  who  shall  be  guilty  of 
noisy,  riotous  or  tumultuous  conduct  disturb  the  quiet  and 
peace  of  the  village,  or  of  any  meeting  or  assembly  therein, 
shall  be  deemed  and  are  hereby  declared  to  be  disorderly 
persons  under  this  act,  and  under  any  rule,  by-law  or  ordi- 
nance adopted  in  pursuance  thereof  for  the  punishment  of 
disorderly  persons.    (Part  of  section  18,  title  8.) 

Any  trustee  or  any  police  constable  is  hereby  authorized 
to  arrest  any  vagrant  or  disorderly  person,  with  or  without 
process,  and  take  him  or  her  forthwith  before  the  proper 
officer.  If  such  officer  cannot  be  found,  the  persons  arrest- 
ing may  detain  the  person  arrested,  not  to  exceed  twenty- 
four  hours,  until  the  proper  officer  to  try  such  person  is 
found.    (Section  19,  id.) 


*  Section  2010  is  one  of  the  sections  here  referred  to. 


EXCISE  AND  HOTEL  LAWS. 


75 


CHAPTER  II. 


SYNOPSIS  OF  THE  GENERAL  PROVISIONS  OF  THE  EXCISE 
LAWS  RELATING  TO  THE  DUTIES,  POWERS  AND  OBLI- 
GATIONS OF  COMMISSIONERS  OF  EXCISE,  OVERSEERS  OF 
THE  POOR  AND  HOTEL  KEEPERS. 

SECTION  I. 

Commissioners  of  Excise. 

Commissioners  of  excise  are  elected  in  towns  like  other 
town  officers,  one  in  each  year,  and  hold  their  office  for 
three  years.  They  are  voted  for  on  a  separate  ballot,  and 
should  take  the  constitutional  oath  of  office  before  entering 
upon  the  duties  of  their  office.  Each  commissioner  must 
execute  a  bond  for  double  the  excise  money  of  the  pre- 
ceding year,  but  need  make  only  one  bond  during  the  term 
of  office.  The  oath  of  office,  and  also  the  bond  after  b*4ng 
duly  approved,  should  be  filed  in  the  town  clerk's  office 
of  their  town  before  entering  upon  their  duties. 

The  pay  of  commissioners  of  excise  is  three  dollars  per 
day.  They  should  meet  in  their  respective  towns  on  the 
first  Monday  of  May  in  each  year  for  the  purpose  of  grant- 
ing licenses,  and  at  such  first  meeting  should  organize  them- 
selves as  a  board,  making  one  of  their  number  chairman, 
and  one  secretary.  The  law  provides  that  the  board  shall 
not  appoint  a  clerk,  but  that  means  outside  their  own  body  ; 
the  statute  requires  them  to  keep  minutes,  and,  therefore, 
it  is  necessary  that  one  of  their  number  should  keep  them. 
The  secretary  so  appointed  should  keep  minutes  of  all  their 
proceedings,  as  provided  by  statute,  and  deposit  them  with 


76 


EXCISE  AND  HOTEL  LAWS. 


the  town  clerk.  The  secretary  can  receive  no  extra  com- 
pensation as  such. 

At  other  times  they  should  meet  on  application  made  in 
good  faith,  but  not  oftener  than  once  in  each  month.  All 
licenses  granted  by  them  shall  expire  on  the  first  Monday 
of  May  succeeding  the  date  of  granting  the  same. 

The  act  of  1845,  allowing  a  local  option  vote,  is  generally 
acquiesced  in  as  at  least  substituted  by  the  election  of  excise 
commissioners  by  the  people  with  power  to  grant  or  refuse 
licenses,  and  to  approve  of  applicants  and  their  qualifica- 
tions as  well  as  the  discretion  to  decide  whether  the  appli- 
cants have  a  good  moral  character  or  not.  This  leaves  the 
door  open  for  a  refusal  to  grant  any  license,  as  those  of 
extreme  views  may  claim  no  man  to  be  moral  who  sells  in- 
toxicating liquors,  and  on  this  ground  alone  might  not 
"approve"  of  the  applicant,  The  board  cannot  be  com- 
pelled to  grant  licenses. 

The  fee  for  a  hotel  license  cannot  be  less  than  thirty  nor 
more  than  $150  in  towns,  nor  more  than  $250  in  cities,  and 
where  the  license  is  to  run  for  less  than  one  year  a  pro  rata 
fee  should  be  fixed  upon.  The  board  must  keep  a  list  of  all 
persons  and  places  licensed,  and  the  fee  charged,  the  same 
to  be  open  for  public  ins})ection.  The  petition  of  twenty 
freeholders  is  no  longer  necessary. 

The  board  may  also  grant  ale  and  beer  licenses  for  a  fee 
of  not  less  than  ten  dollars,  and  the  same  rules  apply  on  the 
applications  therefor  as  above.  The  board  shall  grant  no 
licenses,  either  for  hotels  or  saloons,  until  all  legal  require- 
ments have  been  complied  with,  and  each  license  granted 
must  be  signed  by  the  board,  or  a  majority  of  them. 

The  commissioners  must  not  onfy  be  satisfied  of  the  moral 
character  of  the  applicant,  but  that  he  has  sufficient  ability, 
and  the  accommodations  necessary,  and,  also,  that  a  hotel 
is  necessary  at  the  place  where  it  is  applied  for.  They  shall 
exact  a  bond  in  the  sum  of  $500,  with  two  sufficient  sureties, 
that  he  will  not  suifer  his  house  to  be  disorderly,  nor  suffer 
any  gambling,  nor  keep  a  gambling  table  in  or  connected 
with  his  hotel. 

In  granting  store  licenses  the  same  care  is  required  as  to 
character;  the  bond  must  be  for  $1,000,  conditioned  that 


EXCISE  AND  HOTEL  LAWS. 


77 


the  applicant  will  not  suffer  his  place  to  be  disorderly,  and 
that  liquors,  wines,  etc.,  shall  not  be  drank  on  the  premises. 
For  a  saloon  or  beer  license  a  bond  similar  to  that  of  hotel 
keepers  must  be  given  by  the  applicant,  who,  also,  must  be 
a  person  of  good  moral  character. 

The  commissioners  sne  for  no  penalties  except  in  such 
towns  as  have  no  overseer  of  the  poor,  in  which  case  it  is 
their  duty  to  sne  for  the  same  penalties,  and  in  like  manner, 
as  overseers  of  the  poor. 

When  complaint  is  made  by  any  resident  of  the  town 
stating  that  a  licensed  person  is  gnilty  of  some  violation  of 
the  excise  law,  the  board,  being  invested  with  certain  judi- 
cial functions,  must  summon  before  them  the  person  licensed 
and  complained  of,  and  have  an  examination  of  the  charges 
made,  and  if  they  are  satisfied  that  the  person  is  guilty  of  a 
violation  they  must  cancel,  revoke  and  annul  his  license. 
The  board  has  the  power  to  compel  the  attendance  of  wit- 
nesses on  the  examination,  administer  oaths  and  examine 
them.  The  board  may  employ  an  attorney  to  assist  them 
in  their  investigation,  and  if  they  are  satisfied  that  there  has 
been  a  violation  the  license  must  be  canceled,  and  they  have 
the  authority  to  enter  the  premises  licensed  for  that  pur- 
pose. 

The  members  of  the  board,  as  soon  as  elected,  should  see 
to  it  that  their  oath  of  office  and  bond  are  duly  filed  with 
the  town  clerk,  as  otherwise  it  might  cause  a  vacancy,  and 
so  even  if  they  proceeded  to  act  without  so  doing.  Should 
they  proceed  without  filing  their  oath  and  bond,  as  between 
themselves  and  the  public  they  would  probably  be  dt  facto 
as  well  as  dejure  commissioners,  but  whether  they  would  be 
tu  a  position  to  enforce  4he  provisions  of  the  excise  laws, 
would  be  a  vexed  question  requiring  tedious  and  costly  liti- 
gation to  decide. 

Within  thirty  days  after  receiving  any  excise  moneys,  it  is 
the  duty  of  the  commissioners  to  pay  the  same  over  to  the 
supervisor  of  the  town,  and  they  should  be  careful  to  take 
his  receipt  therefor.  Their  incidental  expenses  for  books, 
etc.,  are  to  be  collected  the  same  as  any  other  town  charge. 


78 


EXCISE  AND  HOTEL  LAWS. 


SECTION  II. 
Overseers  of  the  Poor. 

Undoubtedly  the  duties  of  overseers  of  the  poor  are  as 
difficult  under  the  excise  laws  as  under  the  poor  laws  of 
the  State.  They  are  made  public  prosecutors  in  very  diffi- 
cult cases.  With  few  exceptions  they  are  to  bring  all  ac- 
tions of  a  civil  nature  for  which  penalties  are  liable  to  be 
paid  under  the  excise  laws.  They  are  men  who  are  not 
usually,  by  their  business  pursuits,  qualified  to  manage 
difficult  legal  prosecutions ;  but  the  statute  having  placed 
the  responsibility  upon  them,  they  will,  at  times,  be  com- 
pelled by  the  force  of  moral  pressure,  if  not  from  their 
ideas  of  duty,  to  prosecute  for  violations  of  the  law.  It  is 
a  recognized  fact  that  the  sale  of  intoxicating  liquors  is  the 
cause  of  a  large  proportion  of  the  pauperism  of  the  country, 
so  that  in  nearly  all  cases  the  fines  and  licenses  are  made  to 
apply,  directly  or  indirectly  to  the  alleviation  of  distress, 
or  the  prevention  of  crime. 

It  is  made  the  duty  of  overseers  of  the  poor  to  prosecute 
for  the  following  penalties  : 

1st.  Against  hotel  keepers  for  not  keeping  suitable  ac- 
commodations, ten  dollars.    {Ante,  section  19.*) 

2d.  Neglect  to  put  up  and  keep  up  hotel  sign,  for  each 
•month  of  failure,  ten  dollars.    (Section  20.) 

3d.  For  taking  security  for  liquors  trusted,  a  forfeiture 
of  double  amount  intended  to  be  secured.    (Sec.  21.) 

4th.  Selling  liquors  in  quantities  of  less  than  five  gallons, 
forfeiture  for  each  offense,  fifty  dollars.    (Section  24.) 

5th.  Selling  liquor  to  be  drank  on  premises  without  a 
license,  forfeiture,  fifty  dollars.    (Section  25.) 

6th.  Against  an  officer  for  refusal  or  neglect  to  arrest  «a 
person  intoxicated  in  a  public  place,  etc.,  fifty  dollars. 
(Section  28.) 

7th.  Against  a  magistrate  for  refusal  to  entertain  com- 
plaint, etc.,  fifty  dollars.    (Section  28.) 

8th.  Selling  or  giving  liquor  to  an  intoxicated  £>erson,  for- 
feiture, ten  dollars  to  twenty-five  dollars.    (Section  29.) 

These  penalties  are  to  be  sued  for  and  collected  by  and 


*  References  to_sections  in  this  chapter  are  to  the  statutes  in  Chapter  I. 


EXCISE  AND  HOTEL  LAWS. 


79 


in  the  name  of  the  overseer  of  the  poor  of  the  town  where 
the  offense  is  committed,  except  in  towns  that  have  no  over- 
Seer  of  the  poor,  in  which  case  they  are  to  be  sued  for  by 
and  in  the  name  of  the  board  of  commissioners  of  excise 
of  the  town,  and  the  money  when  collected  paid  over  to  the 
treasurer  of  the  county  for  the  support  of  the  poor.  (Sec- 
tion 33.) 

The  overseer  may  discover  what  he  regards  as  an  omission 
in  the  above,  in  not  alluding  to  the  forfeiture  or  penalty  of 
the  bonds  given  by  hotel  keepers  and  other  dealers,  but  it 
has  been  held  that  the  penalty  of  the  bond  being  a  contin- 
gent liability,  and  not  a  penalty  imposed,  is  not  to  be 
sued  for  by  the  oveerseers.  Formerly  only  one  action  could 
be  brought  by  the  overseers,  viz. :  that  enumerated  in  sec- 
tion 19.  The  other  actions  that  are  now  given  to  overseers, 
were  given  to  the  board  of  commissioners  of  excise.  By 
section  35  it  is  declared  that,  for  the  breach  of  the  condition 
of  the  bond,  it  shall  be  the  duty  of  certain  parties  to  prose- 
cute, but  does  not  say  in  whose  name  ;  but  as  the  bond  is 
to  the  people,  the  action  should  be  brought  in  the  name  of 
the  people.  Such  an  action  being  for  a  penalty  to  the  peox^le, 
it  should  be  brought  in  pursuance  of  section  1962,  Code  of 
Civil  Procedure,  by  the  district  attorney  or  attorney-general. 

If  the  overseers  of  the  poor,  when  entitled  to  sue  for  a 
penalty  or  forfeiture,  neglect  their  duty  for  ten  days,  after 
complaint  to  them  with  reasonable  proof,  then  any  person 
may  bring  the  action  in  their  name.    (Section  41.) 

It  is  assumed  that  where  the  punishment  for  any  offense 
is  called  a  line,  that  it  is  not  such  as  could  be  collected  by 
the  overseer,  but  must  be  the  result  of  a  conviction  in  a 
court  of  competent  jurisdiction.  Section  41  seems  to  con- 
template a  complaint  before  commencing  a  prosecution,  but 
it  is  not  necessary  except  to  give  any  other  person  the  right 
of  action.  But  it  is  the  better  practice  for  the  overseer  to 
exact  satisfactory  proof  of  the  violation  of  some  act  for 
which  the  statute  gives  a  penalty,  or  have  such  investiga- 
tion as  makes  it  satisfactory  to  him  that  an  offense  has  been 
committed,  before  taking  the  chances  of  a  prosecution. 
Every  cautious  man  will  prepare  himself  with  weapons  be- 
fore laying  down  the  gauge  of  battle,  and  it  is  far  easier  to 


80 


EXCISE  AND  HOTEL  LAWS. 


do  this  before  the  excitement  of  a  litigation  shall  have  com- 
menced ;  then  the  parties  who  know  the  facts  necessary  to 
a  safe  conduct  of  the  action,  may  have  sealed  their  mouths 
and  will  say  nothing,  or  the  pressure  of  the  friends  of  the 
opposite  side  has  handicapped  your  best  efforts.  Owing  to 
public  sentiment  being  in  the  condition  in  which  we  find  it, 
no  one  cares  to  cofne  forward  to  the  aid  of  the  officer,  and 
he  must  make  up  his  mind  to  receive  more  blame  than 
plaudits  for  performing  his  duty.  The  courts  generally, 
however,  are  law  abiding  and  will  do  their  duty  when  once 
an  action  is  before  them  in  proper  form.  When  the  over- 
seers have  neglected  to  bring  the  action,  and  it  is  brought 
by  some  one  else,  the  overseer  has  no  control  over  it  and 
cannot  discontinue  it  without  consent  of  the  person  bring- 
ing it. 

Where  there  is  more  than  one  overseer  in  a  town  they 
should  meet  and  act  as  a  board.  The  same  care  is  to  be  ob- 
served by  overseers  of  the  poor  in  regard  to  taking  the  oath 
of  office  and  giving  bonds  as  is  required  by  commissioners 
of  excise.  The  overseers  have  the  right  to  employ  an  attor- 
ney to  bring  the  action,  and  conduct  their  business  for  them; 
but  the  whole  penalty  and  costs  must  be  paid  into  the 
county  treasury,  and  the  attorneys  fees  paid  as  any  other 
services  performed  for  the  town  or  county  as  the  case 
may  be. 

The  decisions  of  the  courts  on  the  various  questions 
affecting  overseers  of  the  poor  in  excise  matters,  will  be 
found  elsewhere. 

SECTION  III. 
Hotel,  Saloon  a^d  Store  Keepers. 
To  procure  a  license,  the  applicant  should  prepare  a 
petition,  in  writing,  to  the  board  of  commissioners  of  ex- 
cise, setting  forth  the  kind  of  license,  the  place  where,  the 
name  of  the  applicant  or  applicants,  and  every  person  in- 
terested or  to  be  interested  in  the  business,  and  present 
the  same  at  their  annual  meeting  on  the  first  Monday  of 
May,  or,  if  desired,  at  some  later  period  when  the  board 
may  be  called  together  for  that  purpose.  He  should  also 
execute  such  a  bond  as  is  required  by  statute,  with  two 


EXCISE  AND  HOTEL  LAWS. 


81 


sureties,  and  tender  to  the  board  the  fee  fixed  for  such 
license. 

After  procuring  the  license  to  sell,  it  should  be  kept  pub- 
licly posted  in  his  place  of  business,  and  exhibited  on  de- 
mand to  any  peace  officer. 

The  applicant  for  license  will  find  his  first  inquiry  to  be, 
am  I  a  man  of  good  moral  character?  That  answered  in 
the  affirmative — as  it  very  naturally  will  be  in  the  case 
of  the  hotel  keeper — have  I  sufficient  ability  and  the  neces- 
sary accommodations  to  entertain  travelers?  and  then,  is 
there  a  hotel  required  where  I  intend  to  keep  one  \  If  the 
applicant  is  really  anxious  to  keep  a  hotel,  there  will  be  no 
difficulty  in  his  giving  affirmative  answers  to  these  ques- 
tions ;  and  if  there  is  a  board  in  favor  of  granting  licenses 
at  all,  the  applicant  has  but  little  trouble  in  convincing  it 
on  these  points.    (Sections  17  and  23.) 

As  the  question  is  important  as  to  the  applicant' s  compli- 
ance with  his  bond,  especially  if  his  place  of  business  is  in 
the  country,  where  the  question  of  excise  is  frequently  dis- 
cussed, it  is  well  to  say  here,  that  "to  suffer  his  house  to 
be  disorderly"  within  the  meaning  of  the  statute,  is  a  mat- 
ter very  easy  to  accomplish  ;  the  allowance  of  drunkards  in 
his  rooms,  boisterous  and  unseemly  conduct  in  frequenters 
of  his  house,  gambling,  keeping  of  bad  characters  of  either 
sex  in  such  a  public  and  unseemly  manner  as  to  affect  pub- 
lic decency,  etc.  (Section  63.)  The  keeping  of  any  gaming 
table  (and  a  billiard  table  is  held  to  be  a  gaming  table)  works 
a  forfeiture  of  his  bond.    (Section  18.) 

Hotel  keepers  must  keep  three  spare  beds,  and  sufficient 
accommodations  for  man  and  beast.    (Section  19.) 

The  following  are  penalties  hotel  keepers  are  liable  to 
incur : 

1st.  Neglect  to  keep  accommodations,  penalty,  ten  dollars. 
(Section  19.) 

2d.  Neglect  to  put  up  and  keep  up  a  sign,  per  month  for- 
feiture, ten  dollars.    (Section  20.) 

3d.  Securities  for  trusted  liquors  void,  and  double  the  sum 
intended  to  be  secured  forfeited.    (Section  21.) 

4th.  Selling  without  a  license,  forfeiture,  fifty  dollars. 
(Section  24.) 
6 


82 


EXCISE  AND  HOTEL  LAWS. 


5 tli.  Selling  without  license  to  be  drank  on  the  premises, 
forfeiture,  fifty  dollars.    (Section  25.) 

6th.  Selling  to  Indian  or  apprentice  without  consent,  for- 
feiture to  party  injured,  ten  dollars.    (Section  26.) 

7th.  Selling  to  minor  under  eighteen  without  consent  of 
parent,  etc.,  forfeiture  to  party  injured,  ten  dollars.  (Sec- 
tion 26.) 

8th.  Selling  to  Indian  or  minor  under  fourteen  years,  for- 
feiture to  people  by  fine,  twenty-five  dollars.    (Section  26.) 

9th.  Selling  or  giving  liquors  to  intoxicated  persons,  for- 
feiture, ten  to  twenty -five  dollars.    (Section  29.) 

10th.  Selling  or  giving  liquors  to  persons  when  notified 
that  they  are  habitual  drunkards,  penalty,  fifty  dollars. 
(Section  30.) 

11th.  Selling  or  giving  liquors  to  habitual  drunkards, 
fine,  twenty  to  fifty  dollars,  and  the  forfeiture  of  license. 
(Sections  31  and  48.) 

12th.  Selling  to  any  person  when  notified  not  to  do  so  by 
parent,  guardian,  etc.,  fine,  twenty  to  fifty  dollars,  and  the 
forfeiture  of  license.    (Sections  31  and  48.) 

13th.  Selling  or  giving  to  pauper  or  inmate  of  poor-house, 
fine  twenty-five  dollars,  and  imprisonment  not  more  than 
sixty  days.    (Section  31.) 

14th.  Selling  or  giving  away  liquors  on  Sunday,  etc.,  im- 
prisonment and  fine,  thirty  dollars  to  8200.    (Section  32.) 

15th.  For  breach  of  condition  of  bond,  recovery  of  the 
penalty,  $250.    (Section  35.) 

16th.  Conviction  of  any  offense,  forfeits  license.  (Section 
37.) 

17th.  Selling  contrary  to  law  and  to  persons  to  whom  it 
is  unlawful  to  sell,  liable  for  the  injury.    (Section  39.) 

18th.  Adulterating  or  selling  adulterated  liquors,  etc., 
imprisonment  three  months  and  fine,  §100.    (Section  40.) 

19th.  Selling  liquor  in  court  house,  misdemeanor.  (Sec- 
tion 54.) 

20th.  Allowing  minor  under  fourteen  in  certain  places, 
misdemeanor.    (Section  58.) 

21st.  Permitting  child  under  sixteen  to  play,  etc.,  where 
liquor  is  sold,  etc.,  misdemeanor.    (Section  59.) 

22d.  Damages  given  under  the  civil  damage  act.  (Sec- 
tions 69  and  70.) 


EXCISE  AND  HOTEL  LAWS. 


83 


It  will,  therefore,  be  observed  that  the  vendors  of  intoxi- 
cating liquors  are  hedged  roundabout  with  many  require- 
ments, and  it  stands  them  well  in  hand  to  observe  the  rules 
laid  down  for  their  guidance.  They  should  carefully  read 
the  law  affecting  their  interests,  and  as  near  as  possible 
obey  it.  In  many  cases  they  are  ignorant  of  the  law,  and 
although  ignorance  of  the  law  is  no  protection,  there  is  no 
doubt  but  that  if  they  were  fully  informed  of  their  liabilities 
under  the  excise  law,  they  would  be  more  guarded. 

The  near  location  of  other  drinking  places  also  gives  the 
opportunity  for  a  person  who  is  habitually  in  the  habit  of 
using  intoxicating  liquors  of  becoming  well  nigh  intoxicated 
at  one  place,  and  then  by  drinking  once  at  some  other  place 
he  becomes  intoxicated,  and  it  is  a  severe  test  of  judgment  to 
decide  when  and  where  the  man  became  intoxicated.  The 
law  requires  hotel  or  saloon  keepers,  under  a  penalty  of  ten 
to  twenty-five  dollars,  to  be  correct  judges  as  to  whether  a 
man  is  intoxicated  or  not.  If  he  sells  with  a  license  to  a  per- 
son when  not  intoxicated,  well  and  good ;  but  he  must  be 
careful  to  know,  what  is  almost  impossible,  viz. :  when  a  man 
is  intoxicated. 

The  safest  thing  to  do  is  to  entirely  repudiate  in  a  hotel 
the  society  of  men  who  make  it  a  practice  of  drinking  to 
excess.  Then  the  danger  of  selling  to  drunken  men  is 
avoided,  the  tone  and  character  of  the  hotel  is  elevated,  and 
the  moral  tone  of  the  place  where  such  hotel  is  situated  is 
enhanced.  And  if  a  hotel  keeper  is  careful,  and  endeavors 
to  keep  within  the  law,  no  technical  liability  is  ever  pressed 
or  complaint  entertained  by  the  courts. 


84 


EXCISE  AXD  HOTEL  LAWS. 


CHAPTER  III. 


THE  PRINCIPLES  OF  LAW  RELATING  TO  EXCISE  AXD  MATTERS 
COXXECTED  THEREWITH. 

SECTION  I. 

Commissioners  of  Excise,  their  Election  and  Appoint- 
ment, Qualifications,  Powers  and  Duties. 

Election. — Since  1874  excise  commissioners,  except  in 
cities,  have  been  elected  like  other  town  officers,  one  in  each 
year.  They  are  not  to  be  a  supervisor,  justice  of  the  peace, 
town  clerk  or  trustee  of  a  village.  (Sections  1  and  2.*)  The 
ballot  should  be  prepared  with  care  and  made  to  comply  with 
the  statute,  otherwise  an  election  contest  might  be  the  result. 
Commissioners  of  excise  should  be  voted  for  upon  a  separate 
ballot.  (Section  2.)  The  ballot  should  have  a  caption  in  one 
straight  line  in  black  ink,  in  "Great  Primer,  Roman  Con- 
densed Capitals,"  and  the  name  printed  in  plain  type,  with 
letters  of  uniform  size,  also  printed  with  black  ink.  The  bal- 
lot should  be  upon  plain  white  printing  paper,  without  im- 
pression, device,  mark  or  other  peculiarity  whatsoever  upon 
or  about  it,  except  the  name  of  the  candidates.  (Chapter 
336,  1880.) 

The  ballot  should  be  as  follows : 

FOR  COMMISSIONER  OF  EXCISE. 

For  Commissioner  of  Excise, 
JOHN  DOE. 

This  ballot  should  be  folded  so  that  only  the  caption  shall 

*  The  sections  referred  to  in  this  chapter  are  to  the  Statutes  in  Chapter  I. 


EXCISE  AND  HOTEL  LAWS. 


85 


be  in  sight,  and  so  given  to  the  inspectors,  and  by  them  de- 
posited in  a  separate  box  marked  "excise." 

Appointment. — In  towns  vacancies  in  the  office  of  com- 
missioners of  excise  can  be  filled  by  appointment ;  town 
boards  having  the  appointing  power.  (Section  1.)  In  cer- 
tain cities  and  villages  special  acts  provide  for  the  appoint- 
ment, election,  and  who  shall  be  commissioners  of  excise, 
and  their  powers  and  duties  are  provided  for,  while  section  4 
is  general  in  its  application  and  provides  for  the  appoint- 
ment of  commissioners  by  the  mayors  of  all  cities  except 
JSTew  York,  Brooklyn  and  Ponghkeepsie.  It  has  been  held 
that  when  special  provision  was  made  in  city  charters,  for 
the  appointment  of  commissioners  of  excise,  or  other  pro- 
visions specially  applicable  to  city  government,  that  these 
special  provisions  were  not  repealed  by  the  subsequent  pass- 
age of  a  general  statute  purporting  to  extend  over  the  whole 
of  the  State.  {Village  of  Glover  smile  v.  Howell,  70  N.  Y., 
287.) 

The  special  acts,  and  extracts  from  charters,  for  certain 
cities,  in  relation  to  appointment  of  commissioners  of  excise 
and  other  matters  relating  to  the  excise  laws,  are  given  in 
the  following  sections  of  Chapter  I :  For  New  York,  sections 
4,  6,  7,  8,  9,  10,  86;  for  Brooklyn,  sections  4,  6,  7,  8,  9,  10, 
80;  for  Ponghkeepsie,  sections  4,  75  ;  Newburgh,  72;  Kings- 
ton, 74  ;  Yonkers,  76  ;  Lockport,  77 ;  Rochester,  78  ;  Troy, 
79;  Buffalo,  81;  Haverstraw,  82;  Medina,  83;  Orange  county, 
73;  Allegany  county,  84;  and  to  all  cities  of  the  State,  11. 
There  are  some  few  other  special  acts  for  particular  towns 
and  cities  in  this  State,  connecting  in  some  slight  manner 
commissioners  of  excise  with  the  city  or  village  government, 
which  are  not  considered  of  sufficient  importance  to  embody 
in  a  work  of  general  interest. 

Appointments  by  mayors  of  cities,  or  by  town  boards,  or 
other  appointing  power,  must  be  in  writing  and  signed  by 
the  party  or  parties  making  the  appointment  or  the  presid- 
ing officer.  (People  ex  rel.  Kresser  v.  Fitzsimmons  et  al., 
68  N.  Y.,  515  ;  People  ex  rel.  Bdbcock  v.  Murray  et  at.,  70 
id.,  521.)  This  latter  case  went  twice  to  the  general  term 
(5  Hun,  42;  8  id.,  577),  and  the  decision  was  reversed  by 
the  Court  of  Appeals,  where  it  was  held  as  above. 


86  EXCISE  AND  HOTEL  LAWS. 

No  particular  form  of  appointment  is  required,  neither  is 
it  necessary  to  be  delivered.  It  is  sufficient  if  it  is  made  in 
writing  and  signed  by  the  proper  party  or  his  legal  repre- 
sentative. {People ex  rel.  Kresser  v.  Fitzsimmons,  surpra.) 
A  commissioner  cannot  assign  or  transfer  his  office,  and 
he  can  only  be  divested  of  it  in  one  of  the  seven  ways 
pointed  out  by  statute,  viz.:  death,  resignation,  removal, 
ceasing  to  be  a  resident,  conviction  for  crime,  refusal  or 
neglect  to  take  the  oath  of  office  or  file  his  bond,  or  by  a 
decision  of  a  competent  tribunal.  {People  ex  rel.  BabcocTc 
v.  Murray,  supra ;  IK  S.,  122,  §  34.) 

Qualification. — Once  elected  or  appointed,  he  should,  be- 
fore entering  upon  the  duties  of  his  office,  take  and  file 
with  the  town  clerk  of  his  town  his  oath  of  office.  This 
oath  should  be  taken  before  the  town  clerk  or  a  justice  of 
the  peace.  A  notary  public  is  not  authorized  to  administer 
oaths  of  office.  (Section  37,  article  2,  title  3,  chapter  11, 
part  1,  Revised  Statutes.) 

He  should  also,  before  entering  upon  the  dufies  of  his 
office,  execute  a  bond  to  the  supervisor  of  the  town,  to  be 
approved  by  him,  in  double  the  amount  of  the  excise  money 
of  the  preceding  year.  (Section  %.)  There  is  no  time  fixed 
by  the  statute  when  the  oath  and  bond  are  to  be  executed 
and  filed,  except  "before  they  enter  upon  the  duties  of  their 
office."  The  statute  provides  that  any  town  officer  enter- 
ing upon  the  duties  of  his  office,  without  taking  the  oath  of 
office,  shall  forfeit  to  the  town  the  sum  of  fifty  dollars. 
(1  Revised  Statutes,  834,  §  55,  6th  ed.) 

P oioer s  and  Duties. — Boards  of  commissioners  of  excise 
have  the  power  to  grant  licenses  to  such  persons  as  shall  be 
approved  by  them  (section  12),  for  a  license  fee  of  from  five- 
dollars  to  $250.  Five  dollars  for  innkeepers  license  without 
excise  license  (section  52) ;  ten  dollars  and  over  for  ale  and 
beer  licenses  (section  34),  and  thirty  dollars  to  $250  for 
htel  and  store  licenses.    (Section  12.) 

Although  it  is  made  the  duty  of  the  commissioner  to  file 
his  oath  of  office  and  execute  his  bond  before  entering  upon 
his  duties,  yet,  if  he  acts  as  commissioner  without  it,  under 
and  by  virtue  of  his  election,  it  does  not  work  a  forfeiture 
of  the  office  that  can  be  filled  by  appointment  or  election. 


EXCISE  AND  HOTEL  LAWS. 


87 


One  B.  was  elected  as  commissioner  of  excise  for  three 
years ;  lie  executed  a  bond  which  was  approved  by  the 
town  clerk,  when  it  shonld  have  been  by  the  supervisor. 
He  met  with  the  other  two  commissioners  and  acted  with 
them.  Afterward,  and  during  B.'s  term,  the  people  of  the 
town,  assuming  that  there  was  a  vacancy  by  the  failure  of 
B.  to  tile  a  proper  bond,  at  the  annual  town  meeting  pro- 
ceeded to  elect  two  commissioners — K.  to  fill  the  supposed 
vacancy,  and  Bliss  for  the  full  term.  After  qualifying, 
Bliss  and  K.  met  as  an  excise  board,  and  granted  the  de- 
fendant a  license.  B.  and  L.,  the  other  commissioners,  met 
but  granted  no  licenses.  The  overseer  of  the  poor  com- 
menced an  action  against  the  defendant  for  selling  liquor 
without  a  license.  He  claimed  protection  under  his  license 
granted  by  Bliss  and  K.  The  court  held  that  B.,  having 
acted  as  commissioner  before  the  election  of  K.,  was  both  de 
j'urc  and  de  facto  commissioner,  and  that  the  license  granted 
by  Bliss  and  K.  was  wholly  void.  (Uronin  v.  Gundy,  16 
Hun,  520.)  The  rule  is,  that  where  a  party  claims  to  hold 
an  office,  and  performs  its  functions,  his  acts  are  as  valid 
as  to  the  public  and  third  persons  as  though  he  rightfully 
held  the  office.  This  may  be  defeated  by  judicial  proceed- 
ings taken  to  declare  the  office  vacant,  but  not  otherwise. 
(Id.)  There  cannot,  however,  be  one  officer  holding  dejure 
and  another  de  facto  at  the  same  time.  {Board/man  v.  Hai- 
ti day,  10  Paige,  223;  Morgan  v.  QuackenbusTi,  22  Barb.,  72.) 

An  omission  to  file  a  bond  by  an  officer  does  not  make  the 
office  vacant.  He  holds  by  a  defeasible  title,  and  is  right- 
fully in  office  as  to  third  persons,  and  the  question  cannot 
be  raised  collaterally.  {Foot  v.  Stiles,  57  N.  Y.,  399.)  But 
a  different  rule  prevails  where  the  officer  seeks  to  enforce  a 
right  by  his  suit  as  such  officer.  In  such  a  case  the  defend- 
ant may  deny  the  plaintiff's  official  character,  such  as  his 
failure  to  take  the  oath  of  office,  or  give  security,  and  so  is 
not  a  legal  officer.  ( The  People  v.  Hopson,  1  Denio,  579  ; 
People  ex  ret.  v.  Nostrand,  46  ~N.  Y.,  375.)  When  one  man 
attempts  to  exercise  dominion  over  the  person  or  property 
of  another,  it  becomes  him  to  see  that  he  has  an  unques- 
tionable title.    (Tlie  People  v.  Hopson,  supra.) 

Town  or  county  officers  may  employ  an  attorney  where 


ss 


EXCISE  AND  HOTEL  LAWS. 


the  duties  devolving  upon  them  make  it  necessary,  it  was 
so  held  as  to  commissioners  of  excise  when  they  were  county 
officers  in  The  People  v.  Board  of  Supervisors  of  Delaware 
County  (45  X.  Y.,  196),  and  the  same  rule  would  extend  to 
the  overseers  of  the  poor  who  are  directed  to  perform  cer- 
tain duties  and  bring  certain  actions,  heretofore  devolving 
upon  boards  of  excise.  (See  sections  33  and  49.)  And  the 
board  of  auditors,  whether  they  be  town  or  county,  must 
act  upon  any  claim  for  services.  As  to  the  duties  of  such 
board,  see  People  v.  Supervisors,  supra,  and  People  ex  rel. 
Thurston  v.  Auditors  (20  Hun.  150).  The  board  of  com- 
missioners cannot,  however,  give  general  powers  to  an  at- 
torney to  act  in  his  discretion.  The  majority  of  the  board 
must  act.  (Board  of  Excise  v.  Sackrider,  35  X.  Y..  154.) 
The  legal  fees  and  reasonable  disbursements  for  subpoena- 
ing witnesses,  etc..  if  necessary,  are  a  lawful  charge  by  the 
attorney  or  commissioner.  (The  People  v.  Supervisors, 
supra.)  So  are  the  fees  of  sheriffs  and  other  officers. 
(People  ex  rel.  Kelley  v.  Haws.  21  How..  117.) 

Claims  for  such  services  against  political  divisions  of  the 
State,  such  as  towns  and  counties,  should  be  presented  and 
audited,  and.  for  a  failure  to  audit,  mandamus  is  the  cor- 
rect remedy.  But  this  principle  does  not  extend  to  village 
or  city  corporations  existing  under  special  charters :  in  such 
cases  actions  may  be  brought  on  failure  of  the  corporation 
to  pay  in  the  ordinary  way.  (Buckx.  The  City  of  Lock- 
port.  6  Lans..  254.  ^>  This  is  the  established  rule  in  this 
State.  (McCullock  x.  Mayor  of  Brooklyn.  23  Wend.,  458  ; 
Beard  v.  City  of  Brooklyn,  31  Barb.  142  ;  Gansonx.  City 
of  Buffalo.  1  Keyes,  454  :  Baldwin  x.  City  of  Oswego,  2  id., 
132.)  Mandamus  will  not  lie  in  such  cases  :  an  action  is  the- 
only  remedy.  (Buck  x.  The  City  of  Lockport,  6  Lans., 
251.) 

Commissioners  of  excise  may  still  bring  actions  for  penal- 
ties, where  there  are  no  overseers  of  the  poor.    (  Section  33.) 

They  should  meet  as  a  board,  and  all  should  be  notified 
to  attend  all  meetings  for  the  performance  of  their  duties 
in  granting  or  canceling  licenses.  But  the  presumption 
will  be  that  they  did  meet,  in  any  actions  or  proceedings 
instituted  by  them  in  reference  to  such  licenses.    It  is  in- 


EXCISE  AND  HOTEL  LAWS. 


89 


cumbent  upon  a  defendant  to  clearly  show  the  contrary. 
{Board  of  Excise  of  Saratoga  County  v.  Doherty,  16  How., 
46;  Board  of  Excise  v.  SacArider,  35  N.  Y.,  154.)  In  em- 
ploying ail  attorney,  the  board,  or  a  majority,  must  act  or 
authorize  the  act.  (Id.) 

The  duty  of  revoking  licenses  depends  upon  the  satisfac- 
tion of  the  board  that  the  licensee  has  violated  some  pro- 
vision of  the  statute.  (People  ex  rel.  Funke  v.  Board  of 
Excise,  24  Hun,  195.) 

Any  number  of  a  board  of  excise,  less  than  the  whole,  is 
not  tlte  board,  so  that  to  serve  papers  upon  the  excise  board, 
each  member  must  be  served  to  confer  jurisdiction.  The 
board  is  not  a  corporation.  [Metcalf  v.  Garlinghouse,  40 
How.,  50.) 

In  their  proceedings  under  section  49,  they  have  the 
power  to  proceed  on  their  own  volition,  or  upon  complaint, 
to  investigate  the  propriety  of  a  revocation  of  the  license. 
If  a  complaint  is  made  they  shall  proceed  to  the  examina- 
tion. They  may  summon  witnesses  before  them,  and  swear 
them,  or  they  may  proceed  in  any  manner  to  satisfy  them- 
selves. 

A  license  is  a  present  right  and  not  a  vested  one.  It  can 
be  taken  away  by  the  same  power  that  conferred  it,  on  the 
board  becoming  satisfied  that  the  license  was  unworthily 
and  improperly  bestowed.  In  exercising  their  discretion  in 
such  matters,  the  court  will  not  interfere.  They  cannot  be 
coerced  by  mandamus  or  otherwise,  and  for  a  mistake  they 
are  not  liable  civilly  or  criminally.  (People  ex  rel.  Belter 
v.  Wright,  3  Hun,  306-308 ;  People  ex  rel.  Funke  v.  Board 
of  Excise,  24  id.,  195;  Ex  parte  Persons,  1  Hill,  655;  Peo- 
ple v.  Norton,  7  Barb.,  477;  People  v.  Jones,  54  id.,  315.) 

Selling  beer  on  Sunday,  or  keeping  open  a  saloon  on  that 
day  for  a  public  sale,  is  a  violation  of  the  statute  for  which 
the  commissioners  may,  on  their  motion,  or  on  the  com- 
plaint of  any  other  person,  examine  as  to  the  truth  of  and 
may  cancel  the  license.  (People  ex  rel.  Presmyer  v.  Com- 
missioners of  Police  et  al.,  59  X.  Y.,  95.)  It  is  not  a  con- 
viction, but  simply  determines  whether  the  licensed  party 
continues  to  be  a  suitable  person  to  sell  liquors.    The  stat- 


90 


EXCISE  AND  HOTEL  LAWS. 


nte  itself  determines  that  a  violation  of  the  excise  law,  by 
one  holding  a  license,  is  not  a  suitable  person.  (Id.) 

Commissioners  are  entitled  to  pay  for  their  services,  not 
only  in  meeting  to  grant  licenses,  but  for  annulling  them, 
or  for  other  necessary  labor.  (The  Board  of  Commission- 
ers of  Excise  v.  Doherty,  16  How.,  46-50;  People  ex  rel. 
Plumb  v.  Supervisors  of  Cortland  County,  24  How.,  119.) 

Commissioners  are  vested  with  large  discretion,  and  the 
courts,  as  has  been  shown,  will  not  interfere  with  that  dis- 
cretion, where  there  is  opportunity  for  its  exercise.  But 
when  they  act  willfully  and  corruptly,  and  grant  a  license 
to  an  innkeeper,  knowing  that  he  is  not  a  man  of  good 
moral  character,  nor  a  person  of  sufficient  ability  to  keep  a 
hotel,  and  that  he  has  not  the  necessary  accommodations  to 
entertain  travelers,  and  that  a  hotel  is  not  absolutely  neces- 
sary at  the  place  where  he  proposes  to  keep  a  hotel,  they 
are  liable  to  indictment.  They  do  not  act  solely  as  judicial 
officers.  Their  duties  are  so  plainly  defined  that  if  they 
willfully  disregard  them,  they  are  liable.  (People  v.  Nor- 
ton, 7  Barb.,  477  ;  People  v.  Jones,  54  id.,  311-315.) 

After  they  have  met  and  decided  to  grant  licenses,  they 
can  be  compelled  by  mandamus  to  do  so,  but  not  before. 
{Matter  of  KeJley  v.  Excise  Commissioners,  54  How..  327.) 
But  a  mandamus  will  not  be  awarded  to  compel  an  act  by  a 
public  officer  in  respect  to  which  he  may  exercise  judgment 
or  discretion.  (People  ex  rel.  Hammond  v.  Leonard,  74 
IS".  Y.,  443.) 

The  commissioners  are  liable  criminally  for  an  unlawful 
and  corrupt  exercise  of  the  powers  vested  in  them.  While 
they  are  responsible  only  for  good  faith  and  integrity,  they 
cannot,  from  corrupt  motives,  either  grant  or  refuse  a  li- 
cense improperly,  and  shield  themselves  under  the  judicial 
character  of  their  office.  (People  v.  Jones  et  al.,  54  Barb., 
311.)  An  indictment  for  willfully  and  corruptly  granting  a 
license  to  a  person  to  sell  spirituous  liquors  as  an  innkeeper, 
the  commissioners  knowing  that  the  applicant  was  not  a 
man  of  good  moral  character,  nor  a  person  of  sufficient 
ability  to  keep  a  hotel,  was  sustained  on  demurrer  in  Peo- 
ple v.  Norton  (7  Barb.,  477).  And  the  reasoning  of  the 
court  was  entirely  conclusive.    (People  v.  Jones,  54  Barb., 


EXCISE  AND  HOTEL  LAWS.j 


91 


310.)  To  constitute  the  offense,  the  license  must  have  been 
granted  with  full  knowledge  of  the  facts,  and  willfully  and 
with  intent  to  violate  the  statute.  (Id.) 

SECTION  II. 
Licenses. 

By  section  2  of  the  act  of  1857  (section  13),  there  were  two 
kinds  of  licenses  allowed  to  be  granted,  one  to  hotel  Jveepers 
and  one  to  store  keepers.  The  act  of  1869,  provided  for  ale 
and  beer  licenses.  In  1870  and  1873,  section  12  was  enacted 
as  it  now  is,  and  it  was  for  a  time  supposed  that  this  section 
provided  for  a  new  kind  of  license,  without  limit  as  to  where 
the  liquor  should  be  drank,  and  that  it  superceded  section  2 
of  the  act  of  1857.  It  was  thus  held  by  the  general  term  in 
Smith  v.  People  (9  Hun,  446).  Justice  E.  D.  Smith,  in  writ- 
ing the  opinion,  says  :  "The  act  of  1870,  was  obviously  in- 
tended to  change  the  law  in  regard  to  the  sale  of  intoxicating 
drinks,  and  to  introduce  a  new  system,  and  not  to  amend  an 
old  law.  No  license  is  required  for  the  sale  of  intoxicating 
drinks  of  any  kind,  except  the  license  prescribed  in  section  4 
of  the  act  of  1870.  (Section  12.)  It  prescribes  a  single  form 
of  license  for  tavern  keepers,  grocers  and  store  keepers, 
and  all  other  persons  asking  a  license  to  sell  intoxicating 
drinks.-'  This  was  an  end  devoutly  to  be  wished,  by  those 
who  wanted  as  extended  licenses  as  possible.  This  was  in 
December,  1876.  It  had  been  held  differently  in  (J  RuurJce 
v.  People  (3  Hun,  225),  two  years  before  ;  but  Mr.  Justice 
Smith  claimed  that  the  decision  in  Smith  v.  People  was  not 
necessarily  different  from  the  case  in  3  Hun,  as  that  was  a 
case  of  indictment  for  selling  ale. 

The  case  of  The  People  v.  Smith  went  to  the  Court  of 
Appeals,  and  is  reported  in  69  N.  Y.,  175,  and  was  reversed, 
the  case  in  3  Hun  receiving  confirmation,  and  the  following 
seems  to  be  the  rule  as  gleaned  from  these  two  cases  :  Sec- 
tion 12  is  not  a  new  law,  but  a  kind  of  preface  to  section  13, 
although  passed  several  years  after,  and  merely  explanatory 
of  a  previously  passed  act ;  that  it  repealed  only  so  much  as 
did  away  with  the  petition  of  twenty  freeholders.  The  case 
of  Smith  v.  People  arose  in  Jefferson  county.    Smith,  the 


92 


EXCISE  AND  HOTEL  LAWS. 


defendant,  was  indicted  for  selling  liquor  by  small  measure 
to  be  drank  on  the  premises.  He  admitted  selling  the  liquor, 
but  defended  by  virtue  of  a  license  drawn  according  to  sec- 
tion 12,  claiming  that  that  law  did  not  restrict  him  from 
selling  in  small  quantities  to  be  drank  on  the  premises,  he 
not  being  a  hotel  keeper.  Judge  Folger  wrote  the  opinion 
and  the  decision  in  the  <J  Hourly e  Case  was  thoroughly  sus- 
tained, and  the  fact  recognized,  that  a  license  to  sell  strong 
and  spirituous  liquors  (except  ale  and  beer)  can  only  be 
granted  to  hotel  keepers.  That  there  are  three  distinct 
kinds  of  licenses.  First.  Tavern  or  hotel  licenses,  where 
liquor  may  be  sold  in  quantities  less  than  five  gallons  at  a 
time  to  be  drank  on  the  premises.  Second.  To  store  keep- 
ers, to  sell  all  kinds  of  liquor,  and  in  quantities  less  than 
five  gallons  at  a  time  not  to  be  drank  on  the  premises. 
Third.  To  sell  ale  and  beer  in  quantities  less  than  five  gal- 
lons to  be  drank  when  and  where  the  purchaser  pleases. 
(0' Rourlte  v.  People,  supra.) 

Some  curious  ideas  are  suggested  by  these  different  classes 
of  licenses  as  enumerated  in  the  (J  RourJce  Case.  In  the  first 
class  the  literal  interpretation  permits  a  party  to  step  into  a 
hotel  and  call  for  five  gallons  of  whiskey,  stating  that  he 
desires  to  drink  it  on  the  premises.  He  may  take  it  to  his 
room  in  the  hotel  and  drink  until  it  or  nature  is  exhausted. 
After  doing  this,  until  he  satisfies  the  landlord  that  he  drinks 
it  on  the  premises,  he  may  purchase  it  by  measure  again  and 
sell  it,  if  he  please,  without  the  landlords  knowledge,  and  the 
license  will  not  be  broken.  The  crime  and  penalty  would 
pass  from  the  landlord  to  his  purchaser ;  so  the  best  in- 
tended laws  may  be  defeated. 

In  the  second  class  of  licenses,  there  is  absolutely  no  re- 
striction, if  the  store  keeper  can  get  the  purchaser  off  his 
premises.  Then  he  may  drink  his  five  gallons  at  a  neigh- 
bors, or  in  his  own  house. 

In  the  third  class,  there  is  no  restriction.  The  licensee 
may  sell  a  glass  or  a  barrel  (a  license  being  unnecessary  for 
an  amount  exceeding  five  gallons),  and  the  purchaser  may 
drink  it  all  there  or  take  it  off  the  premises.  An  ale  or  beer 
license,  costing  ten  dollars,  authorizes  a  sale  by  the  drink  or 
by  the  measure,  and  to  be  drank  anywhere.   A  hotel  license, 


EXCISE  AND  HOTEL  LAWS. 


93 


costing  from  thirty  dollars  to  $250,  restricts  the  sale,  and 
beer  is  only  to  be  sold  like  other  liquor,  to  be  drank  on  the 
premises.  This  seems  to  be  the  doctrine  in  the  CP Rourke 
Case. 

Neither  store,  hotel  or  saloon  keeper  may  sell  between  the 
hours  of  one  and  five  o'clock  a.  m.  (The  People  v.  Smith, 
69  N.  Y.,  184.) 

The  opinions  in  the  two  cases  last  cited  cover  nearly  all 
the  disputed  questions  upon  the  different  kinds  of  licenses 
under  the  acts  of  1857,  1869,  1870  and  their  amendments, 
and  an  exhaustive  effort  made  to  harmonize  the  various  acts 
with  each  other. 

It  is  a  question  that  is  yet  undecided,  whether  non-resi- 
dents can  have  a  license  to  sell  intoxicating  liquors.  Sec- 
tion 2  of  the  act  of  1857,  absolutely  restricted  licenses  to 
residents  of  the  town  ;  but  the  statute  of  1870,  as  amended 
by  the  act  of  1873  (section  12),  makes  no  such  restriction 
whatever.  But  as  it  has  been  held  that  most  of  section  2  of 
the  act  of  1857  was  left  undisturbed,  and  only  one  instance 
given  wherein  it  was  repealed,  it  is  uncertain  how  it  may  be 
held  if  it  should  come  before  the  courts.  Judge  Folger, 
in  The  People  v.  Smith  (supra),  held  that  the  petition  of 
twenty  freeholders  was  no  longer  necessary  in  procuring  a 
license,  but  gave  no  reason  for  the  opinion.  It  seems  that 
if  section  2  of  the  act  of  1857  was  repealed  in  that  particular, 
that  the  same  reasoning  would  allow  licenses  to  be  taken  by 
persons  not  residents  of  the  town.  The  law  of  1870  and  1873 
declares  that  the  commissioners  may  grant  licenses  to  any 
person,  and  does  not  limit  its  being  granted  to  residents,  or 
to  persons  who  present  petitions  of  freeholders,  and,  with- 
out some  authority  upon  the  subject,  it  seems  that  any  per- 
son, otherwise  qualified,  may  obtain  a  license,  as  the  same 
rule  that  would  make  the  petition  of  freeholders  unnecessary 
would  strike  out  the  clause  limiting  licenses  to  residents. 

The  matter  of  annulling  licenses  has  been  generally  treated 
under  the  head  of  powers  and  duties  of  commissioners  of 
excise.  There  are  two  methods  of  canceling  or  annulling  a 
license.  Sections  36  and  37  contained  the  only  methods  of 
their  cancellation  prior  to  1870.  The  above  sections  are 
sections  25  and  26  of  the  act  of  1857,  and  these  sections  were 


94 


EXCISE  AND  HOTEL  LAWS, 


taken  almost  literally  from  the  Revised  Statutes  of  1829. 
The  reading  of  section  36  is  very  peculiar.  "Whenever  any 
conviction,  etc.,  shall  be  obtained  in  a  suit  for  a  penalty 
or  on  a  bond,  it  shall  be  the  duty  of  the  magistrate,  etc." 
Now,  conviction,  in  the  usual  acceptation  of  the  term,  means 
the  result  of  a  criminal  prosecution,  and  not  a  civil  suit  for 
a  penalty  or  on  a  bond.  Surely  the  ways  of  excise  legisla- 
tion are  past  finding  out.  The  courts,  in  their  diligent 
efforts  to  give  some  effect  to  every  statute,  hold  that  convic- 
tion means,  as  used  in  the  above  sections,  the  conclusion  of 
a  prosecution  thereunder,  whether  civil  or  criminal.  {The 
People  v.  Tighe,  5  Hun,  25,  28.) 

The  same  case  holds  that  the  proceedings  under  section  36 
need  not  be  taken  when  an  actual  conviction  is  had ;  that 
section  49  gives  an  additional  remedy,  and  that  a  conviction, 
in  the  ordinary  sense,  annuls  the  license  from  the  beginning, 
and  it  is  no  longer  any  protection  to  the  licensee.  (Id. )  This 
may  be  so  ;  but  it  is  the  preferable  rule  for  the  commission- 
ers to  act  at  once  and  make  the  order  revoking  the  license, 
and  file  it  in  the  town  clerk's  office.  Indeed,  the  statute 
seems  to  contemplate  such  course  (section  49),  and  it  is  the 
better  practice.  If  the  excise  board  fails  to  act,  as  required 
by  section  49,  they  may  be  compelled  by  mandamus.  (Hat- 
ter of  Hooli,  55  Barb.,  257.) 

All  licenses  must  be  in  writing  (Lawrence  v.  Gracy,  11 
John.,  179),  and  signed  by  the  commissioners.  And  a  de- 
fendant cannot  justify  when  sued  for  a  penalty  under  a 
parol  license.  (Lawrence  v.  Gracy,  supra  ;  People  ex  rel. 
Babcock  et  al.  v.  Murray  et  al.,  70  ~N.  Y.,  521;  People  ex 
rel.  Kresser  v.  Fitzsimmons,  68  id.,  514.)  And  it  must  be 
delivered  before  taking  effect.  (Opinion  Attorney -General, 
527.)  A  license  illegal  for  want  of  authority  to  grant  it,  is 
no  defense  to  an  action  for  a  penalty.  (Palmer  v.  Doney, 
2  John.  Cases,  346.)  A  license  to  keep  tavern  is  a  personal 
trust,  and  defendant  cannot  justify  under  an  assigned  license. 
(Alger  v.  Weston,  14  John.,  231.)  It  is  a  mere  temporary 
permit.    (Met.  Board  of  Excise  v.  Barrie,  34  N.  Y.,  657.) 

A  person  cannot  take  two  licenses  at  the  same  time  and 
in  the  same  house ;  the  one  a  store  and  the  other  a  hoteL 
license.    (Benson  v.  Moore  &  Brundydge,  15  Wend.,  260. 


EXCISE  AND  HOTEL  LAWS. 


95 


Whether  such  a  condition  of  things  would  be  sustained  by 
the  courts,  in  a  case  where  an  innkeeper  held  a  hotel  license, 
and  his  bar- tender  held  a  store  keepers  license,  both  selling 
in  the  same  building,  is  a  query. 

Where  commissioners  of  excise  have  granted  such  licenses 
with  full  knowledge  of  all  the  facts,  they  would,  of  course, 
refuse  to  cancel  either  license.  It  would  probably  resemble 
the  case  of  Wheeler  v.  Calk  his  (17  How.,  451),  where  the 
judge,  on  a  motion  for  a  second  trial  on  error  of  judgment 
in  the  jury,  remarked:  "That  everything  was  positively 
proved,  except  the  defendant's  intent  that  the  liquor  should 
be  drank  out  of  his  house,  and  it  is  difficult  to  see  how  the 
jury  came  to  a  conclusion  favorable  to  the  defendant." 

SECTION  III. 

COXVIOTIOXS  AND  MlSDEMEANOES. 

Before  being  fully  prepared  to  understand  the  matter  of 
criminal  prosecutions  for  selling  liquors  and  violating  the 
excise  law,  it  will  be  necessary  to  recall  the  sweeping  man- 
ner in  which  ordinary  misdemeanors  have  been  treated  by 
the  Code  of  Criminal  Procedure.  By  section  56  of  said  code, 
a  large  number  of  offenses  have  been  removed  from  the  grand 
jury  room,  and  except  in  the  city  and  county  of  New  York, 
and  the  city  of  Albany,  courts  of  special  sessions  have,  in  the 
first  instance,  exclusive  jurisdiction  therein.  Subdivision 
12  of  that  section  includes  all  "offenses  against  the  laws 
relating  to  excise,  and  the  regulation  of  taverns,  inns  and 
hotels;"  subdivision  27,  " unlawfully  selling  or  giving  to 
any  Indian,  spirituous  liquors  or  intoxicating  drinks;" 
subdivision  32,  "selling  liquors  in  a  court  house  or  jail 
contrary  to  law."  And  hereafter,  until  a  change  shall  be 
made,  such  offenses  will  no  more  be  sent  before  a  grand  jury, 
unless  certified  there,  under  section  57  of  said  code,  but 
will  be  tried,  in  the  first  instance,  by  a  justice  or  jury  in  a 
court  of  special  sessions.  The  allusions  to  oyer  and  termi- 
ner and  sessions — in  sections  27  and  28,  ante — will  have  to 
be  interpreted  in  the  light  of  the  said  56th  section  of  the 
Code  of  Criminal  Procedure,  and  so  far  as  those  sections- 
contemplate  sending  the  offender  to  the  oyer  and  terminer 


96 


EXCISE  AND  HOTEL  LAWS. 


or  sessions,  they  must  be  taken  as  repealed,  and  the  pris- 
oner will  have  to  prepare  for  trial.  It  will  not,  however, 
hinder  his  having  a  trial  by  jury.  It  has  been  necessary  to 
thus  allude  to  the  changes  made  in  the  criminal  practice  for 
the  better  understanding  of  what  follows. 

It  is  almost  impossible  to  read  sections  27  and  40,  with- 
out coming  to  the  conclusion  that,  whatever  is  declared  an 
"offense"  in  the  act  of  1857  and  its  amendments,  is  a  mis- 
demeanor, otherwise  section  27  would  be  unmeaning  to  the 
ordinary  reader.  Peace  officers  are  directed  "  to  arrest  all 
persons  actually  engaged  in  the  commission  of  any  offense 
in  violation  of  this  act,''  and  take  the  offender  before  a 
magistrate,  etc.  Such  magistrate  must  hold  him  to  bail  in 
the  sum  of  8100,  conditioned  that  he  will  answer  the  charge 
at  the  oyer  and  terminer  or  sessions.  These  courts  are  each 
criminal  courts,  and  not  civil  tribunals.  IS"o  provisions  are 
made  to  collect  the  penalties  named  in  the  act  in  any  such 
manner,  for  they  are  to  be  collected  by  action  brought  in 
the  ordinary  way.  Section  40  still  further  confirms  this 
impression,  wherein  it  states  what  directions  shall  be  given 
grand  jurors.  It  is  true  that  the  latter  part  of  that  section, 
wherein  misdemeanors  are  declared,  and  their  punishment 
fixed,  has  been  held  as  relating  solely  to  the  offenses  named 
in  the  section,  and  therein  specified,  to  wit :  adulterating 
liquors,  etc.,  and  had  no  relation  whatever  to  the  first  propo- 
sition, which  ends  in  the  phrase  "  and  to  present  all  offend- 
ers under  this  act ; ' '  therefore  the  first  part  of  section  40 
is  the  only  portion  that  confirms  this  view.  The  Court  of 
Appeals  still  further  confirms  this  in  the  case  of  Belian 
v.  People  (17  K  Y.;  516-520)  and  in  Hill  v.  People  (20  id., 
363),  wherein  it  was  held  that  all  offenses  under  the  excise 
law  were  misdemeanors.  Were  this  all  the  information  to 
be  gleaned  from  the  books,  it  would  be  easy  to  declare  that 
the  reading  was  correct.  There  is  no  question  but  that  the 
decision  in  the  Belian  Case  would  sustain  this  view,  but  as 
it  is  not  the  first  time  the  Court  of  Appeals  has  disagreed 
with  itself,  a  further  examination  of  its  opinions  sheds  fur- 
ther light  upon  a  vexed  question.  And  now  it  will  be 
necessary  to  make  it  possible  for  every  section  of  the  excise 


EXCISE  AND  HOTEL  LAWS. 


97 


law,  relating  to  this  question,  conformable  to  the  latest  de- 
cision of  the  court  of  dernier  resort. 

The  case  of  The  People  v.  Hi  slop  (77  N.  Y.,  331)  holds, 
that  " all  offenses  under  this  act"  are  not  misdemeanors; 
that  only  such  offenses  as  are  declared  misdemeanors  in  the 
act  itself,  or  were  made  such  by  some  prior  statute,  can  be 
punished  criminally.  "That  where  a  statute  creates  a  new 
offense,  making  that  unlawful  which  was  lawful  before,  and 
prescribes  a  particular  penalty  therefor,  that  penalty  alone 
can  be  enforced:  the  offense  is  not  indictable."  This  de- 
cision was  upon  section  29,  for  selling  liquor  to  an  intoxi- 
cated person.  To  harmonize  these  somewhat  apparent 
incongruities,  it  will  be  necessary  to  review  some  of  the 
sections  of  the  statute  with  this  rule  before  us. 

The  offense  specified  under  section  24  having  formerly 
been  declared  a  criminal  offense,  as  stated  in  Behan  v.  Peo- 
ple (17  ~N.  Y.,  516),  must  stand  as  such  still.  Sections  19,  20, 
21,  24,  25  and  26,  are,  in  the  main,  re-enactments  of  sections 
8,  9,  11,  15,  16  and  17  of  the  Revised  Statutes  of  1829, 
vol.  1,  679  to  681,  and  each  of  these  offenses  are  made  mis- 
demeanors by  section  25  of  said  statute  (p.  682).  By  the  rule 
in  the  Behan  Case,  supra,  and  acquiesced  in  by  the  court 
in  The  People  v.  Hislop  (77  N.  Y.,  331),  each  of  the  above 
sections  specify  misdemeanors  so  far  as  they  describe  the 
same  offenses  as  the  original  Revised  Statutes  above  re- 
ferred to,  and  with  the  exception  of  the  corresponding  sec- 
tions 17,  of  the  Revised  Statutes,  and  26  of  this  work,  they 
are  the  same  to  all  intents  and  purposes.  Said  sections  17 
of  the  Revised  Statutes  and  26  ante,  coincide  only  in  two 
things :  apprentice  and  minor  under  fourteen  years.  Sell- 
ing to  the  former  under  section  26,  only  makes  the  vendor 
liable  to  a  penalty  under  that  section,  and  to  the  latter  a 
crime.  So  as  to  an  apprentice,  we  must  go  back  to  the  Re- 
vised Statutes  as  originally  passed — section  17,  ante — for 
its  construction.  Selling  to  a  minor  under  14,  is  made  a 
misdemeanor  by  both  statutes.  It  will  be  observed  that 
section  26  enumerates  several  classes,  to  whom  a  sale  is  pro- 
hibited in  the  first  part  of  the  section  ;  but  by  reference  to 
the  old  statutes  as  above,  it  will  be  seen  that  it  is  only  as 
to  apprentices  that  a  sale  can  be  made  a  misdemeanor.  It 
7 


98 


EXCISE  AND  HOTEL  LAWS. 


is  a  little  peculiar  why  one  part  of  a  statute,  reading  in  the 
same  way  as  to  sales  to  several  classes  of  persons,  should 
be  construed  as  a  criminal  offense  and  one  a  civil.  Section 
27  must  be  explained  upon  grounds  not  stated  in  either  of 
the  four  cases  on  this  subject,  and  which  are  cited  in  this 
connection.  This  section  enacts,  in  substance,  that  any 
offense  under  this  act  is  criminal,  where  an  officer  finds  the 
offender  actually  engaged  in  its  commission,  and  not  that 
all  offenses  are  misdemeanors  in  any  other  way  ;  so  we  have 
the  anomaly  of  an  offense  being  criminal  if  the  offender  is 
caught  in  the  act,  but  if  he  can  evade  the  eye  of  the  officer, 
no  matter  how  much  he  may  offend  the  public  sense  of  de- 
cency and  order,  he  cannot  be  arrested  as  for  a  crime  ;  this 
would  especially  apply  under  section  29,  which  defines  an 
offense,  but  not  a  crime  under  the  old  Revised  Statutes. 
This  places  a  premium  upon  sly  rascality.  By  an  examina- 
tion of  any  section,  and  observing  the  rules  laid  down  in 
People  v.  Hislop  {supra),  it  will  be  possible  to  tell  what 
are,  and  what  are  not,  criminal  offenses :  First.  Are  they 
made  so  by  the  section  itself  \  Second.  If  not  made  so  by 
the  section  itself,  was  it  by  a  former  statute?  This  will 
cover  the  whole  ground,  except  where  the  sections  are 
somewhat  ambiguous  or  uncertain.  Section  28  and  section 
40  are  the  only  two  sections  that  fall  under  such  definition, 
and  they  have  been  construed  by  the  Court  of  Appeals,  the 
former  in  Hill  v.  The  People  {supra),  and  the  latter  in  Foote 
v.  The  People  (56  IN".  Y.,  321). 

With  this  review,  and  an  examination  of  the  four  cases 
last  cited,  the  difficulty  of  construction  upon  the  subject  of 
what  are  crimes,  under  the  excise  law,  will  be  greatly  les- 
sened. 

One  other  question  remains  to  be  elucidated,  which  is  at- 
tempted further  on.  If  the  examination  of  the  cases  cited 
raise  a  commotion  in  the  mind  of  the  examiner,  he  can  con- 
sole himself  with  the  reflection  "that  judges  are  but  men, 
and  too  err  is  human."  He  can  also  say  with  Chief  Judge 
Church  in  The  People  v.  Hislop  :  "  We  may  guess  that  the 
legislature  intended  to  make  all  prohibited  acts  criminal 
offenses,  but  it  is  impossible  to  so  affirm  with  any  degree 
of  certainty      or  with  Judge  Pratt,  in  Behan  v.  The  Peo- 


EXCISE  AND  HOTEL  LAWS. 


99 


pie,  "  the  statute  under  consideration  appears  upon  its  face 
to  have  been  carelessly  framed  ; "  or  with  Judge  Folger,  in 
Foote  v.  The  People,  "a  careful  perusal  of  its  various  sec- 
tions induces  the  idea  that  many  sections  were  framed  and 
adopted  with  no  thought  of  others  in  the  act,  so  far  as 
the  grade  of  offense  or  the  degree  of  punishment  was  con- 
cerned." 

The  following  are  the  head  notes  of  the  four  cases  above 
referred  to : 

"The  sale  of  spirituous  liquors  or  wines,  without  license, 
in  less  quantity  than  five  gallons  at  a  time,  though  not 
among  the  offenses  specially  declared  misdemeanors  by 
chapters  628  of  1857,  is  punishable  by  indictment."  {Be- 
han  v.  The  People,  17  1ST.  Y.,  516.) 

"A  person  accused  of  being  intoxicated  in  a  public  place, 
under  chapter  628  of  1857,  cannot  be  summarily  tried  before 
a  justice  of  the  peace  unless  he  so  elects,  but  is  entitled  to 
give  bail  for  his  appearance  before  the  next  court  of  oyer 
and  terminer  or  general  sessions. 

"The  statute  having  made  intoxication  in  a  public  place 
a  criminal  offense,  the  accused  cannot  be  deprived  of  the 
right  of  trial  by  jury."    {Hill  v.  The  People,  20  1ST.  Y.,  363.) 

"The  provision  of  section  29  of  the  act  of  1857,  to  sup- 
press intemperance  and  to  regulate  the  sale  of  intoxicating 
liquors  (chapter  628,  Laws  of  1857),  declaring  certain  offenses 
to  be  misdemeanors  and  prescribing  the  punishment  there- 
for, applies  only  to  the  specific  acts  just  before  enumerated 
in  said  section,  and  not  to  each  and  every  of  the  offenses 
under  the  statute  unaccompanied  by  a  particular  provision 
characterizing  the  offense  and  fixing  the  punishment. 

"An  offense  against  the  provisions  of  the  13th  section  of 
said  act,  i.  e.,  the  selling  of  strong  and  spirituous  and  intoxi- 
cating liquors  in  quantities  less  than  five  gallons,  without  a 
license  or  authority  of  law,  is  a  misdemeanor,  punishable 
as  prescibed  in  the  provision  of  the  Revised  Statutes  (2  R.  S., 
697,  §  40),  fixing  a  punishment  for  misdemeanors  not  other- 
wise provided  for. 

' '  Where,  therefore,  upon  conviction  of  an  offense  under 
said  section  13,  the  court  below  imposed  the  punishment 
prescribed  by  section  29,  deeming  itself  destitute  of  powep 


100 


EXCISE  AND  HOTEL  LAWS. 


to  do  otherwise,  and  basing  its  action  expressly  upon  that 
ground,  held,  error,  and  judgment  therefor  reversed  and 
case  sent  back  for  such  punishment  to  be  imposed,  as,  in 
accord  with  law  and  in  the  discretion  of  the  court,  is 
meet."    {Foote  v.  The  People,  56  IST.  Y.,  321.) 

"  Where  a  statute  creates  a  new  offense,  making  that  un- 
lawful which  was  lawful  before,  and  prescribes  a  particular 
penalty  therefor,  that  penalty  alone  can  be  enforced ;  the 
offense  is  not  indictable. 

"Accordingly  held,  that  the  offense  of  selling  liquor  to 
an  intoxicated  person,  created  by  the  excise  law  of  1857 
(section  18,  chapter,  628,  Laws  of  1857),  was  not  indictable 
and  punishable  as  a  misdemeanor."  {The  People  v.  His- 
lop,  77  N.  Y.,  331.) 

For  a  proper  understanding  of  these  decisions,  it  will  be 
necessary  to  call  attention  to  the  fact  that,  except  in  the  city 
and  county  of  New  York  and  the  city  of  Albany,  the  crimi- 
nal offenses  under  the  excise  law  are  in  the  first  instance, 
and  exclusively  under  the  jurisdiction  of  courts  of  special 
sessions.  (Subdivision  12,  section  56,  of  the  Code  of  Crimi- 
nal Procedure.) 

Section  27,  as  well  as  other  sections  of  the  excise  law, 
must  now  be  read  with  special  reference  to  the  foregoing 
provisions ;  and  the  case  of  Hill  v.  The  People  {supra), 
which  was  prior  to  the  amendment  of  1869,  must  be  read  in 
connection  with  section  28  as  then  amended. 

The  chief  remaining  difficulty  as  to  the  construction  of 
the  criminal  part  of  the  excise  law,  arises  under  such  sec- 
tions as  the  32d,  where  the  sale  is  by  the  wife  or  servant. 
It  has  been  held  that  to  charge  an  innkeeper  criminally,  for 
selling  liquor  contrary  to  law,  an  intent  to  violate  the  stat- 
ute must  be  shown.  That  a  sale  on  Sunday  or  election  day 
by  the  bartender,  although  of  frequent  occurrence,  is  not 
sufficient  to  convict.  It  must  be  shown  that  the  innkeeper 
in  some  way  participated  in,  or  connived  at  it.  {The  Peo- 
ple v.  Utter,  44  Barb.,  170.)  That  the  question  of  intent 
should  have  gone  to  the  jury,  and  they,  no  doubt,  would 
have  been  authorized  to  have  found  that,  frequent  sales  by 
his  agent,  was  some  proof  that  it  was  known  or  assented 
to  by  the  proprietor ;  and  a  finding  of  the  jury  to  that 


EXCISE  AND  HOTEL  LAWS. 


101 


effect  would  not  have  been  disturbed  on  appeal.  (Id.) 
Strong  presumptions  of  fact,  shift  the  burden  of  proof,  even 
though  the  evidence  to  rebut  them  involve  the  proof  of  a 
negative.    (Best  on  Evidence  [Woods  ed.],  599.) 

In  the  case  of  The  People  v.  Utter  (supra),  the  court  held, 
that  the  presumption  of  innocence  could  not  be  overcome, 
by  simply  showing  that  the  sale  was  made  on  his  premises 
by  his  bar-tender ;  that  it  was  also  necessary  to  show  that 
the  defendant  in  some  manner  participated  in  it,  connived 
at  or  consented  to  it.  "The  presumption  of  innocence  is 
favored  in  law."  (Best  on  Evidence,  620.)  "  This  is  a  well 
known  rule  and  runs  through  the  whole  criminal  law. ' '  (Id. ) 

A  pauper  married  ;  her  husband  went  away  as  a  soldier 
into  service,  and  for  a  year  was  not  heard  from.  She  mar- 
ried again,  and  the  question  came  before  the  English  courts 
as  to  the  legitimacy  of  the  offspring  of  the  second  marriage. 
Here  were  conflicting  presumptions ;  and  the  court  held, 
that  the  presumption  of  legitimacy  ought  to  prevail,  and  in 
a  criminal  case  would  have  been  conclusive.    (Id.,  620.) 

There  is  an  old  maxim  known  to  every  lawyer,  that  every 
man  is  presumed  innocent  until  proved  guilty.  Innocence 
of  crime  is  always  presumed  in  law,  guilt  never.  And  as 
the  law  makes  it  a  crime  to  sell  liquor  in  certain  cases,  a 
reasonable  proof  of  guilt  by  actual  proof,  or  strong  presump- 
tion, should  be  made  before  conviction,  and  when  there  are 
conflicting  presumptions,  the  question  should  be  left  to  a 
jury.  In  an  action  to  recover  a  penalty,  however,  the  rule 
would  be  different.  It  is  only  where  a  man' s  liberty  is  in 
jeopardy  that  this  rule  extends. 

The  case  of  The  People  v.  Utter  has  received  confirmation 
in  Smith  v.  Reynolds  (8  Hun,  128,  130).  Mr.  Justice  Mullin 
there  adopts  the  rule  laid  down  in  Story  &  Paly  on  Agency. 
"  The  general  rule  is,  that  the  principal  is  responsible,  civily, 
for  the  acts  of  his  agent ;  but  not  criminally,  unless  done 
under  his  express  authority.  That  in  a  civil  suit  for  the 
tortious  act  of  the  servant,  the  principal  is  liable." 

The  provisions  of  section  27,  by  which  the  sum  of  §100  is 
prescribed  as  the  penalty  of  the  bond  to  be  taken  where  a 
person  is  arrested  and  brought  before  a  magistrate,  charged 
with  being  found  actually  engaged  in  violating  that  act,  is 


102 


EXCISE  AND  HOTEL  LAWS. 


not  applicable  to  the  case  of  a  person  indicted  under  section 
32,  and  afterward  arrested  under  that  indictment.  In  the 
latter  case  the  bail  is  not  fixed  by  statute,  but  is  left  to  the 
discretion  of  the  magistrate.  (The  People  v.  Page,  3  Park. 
Cr.,  600.) 

The  32d  section,  which  declares  it  a  misdemeanor  for  an 
inn,  tavern  or  hotel  keeper  or  person  licensed  to  sell  liquors, 
to  sell  or  give  away  any  intoxicating  liquors  or  wines  on 
Sunday,  is  not  applicable  to  persons  other  than  those  thus 
designated,  and  it  is  not,  therefore,  an  indictable  offense, 
under  the  statute,  to  sell  or  give  away  intoxicating  liquors 
or  wines  on  Sunday,  when  the  act  is  done  by  a  person  who 
is  not  licensed  to  sell  liquors,  or  who  is  not  the  keepe*  of  an 
inn,  tavern  or  hotel.  (Id.) 

For  the  selling  of  such  liquors  on  Sunday  by  persons  not 
enumerated  in  the  32d  section,  the  only  punishment  is  the 
infliction  of  a  money  penalty  provided  for  selling  without  a 
license  by  other  sections  of  the  act  of  1857,  and  there  is  no 
distinction  in  the  kind  of  punishment,  whether  the  sale  be 
made  on  Sunday  or  on  any  other  day  of  the  week.  (Id.) 

SECTION  IV. 

Actions  for  Penalties,  and  by  Whom  Brought. 

By  Overseer  of  the  Poor.— As  stated  by  section  33,  actions 
for  penalties  must  be  brought  by  and  in  the  name  of  the 
overseer  of  the  poor,  except  in  those  cases  mentioned  in  sec- 
tions 26  and  30.  Those  are  actions  where  the  penalties  are 
given  to  the  party  injured,  or  some  party  for  him.  An  ac- 
tion may  be  brought  on  the  overseer's  own  motion,  or  on  a 
complaint  made  by  some  proper  party.  The  money  realized 
from  any  actions  he  may  bring,  is  to  be  paid  over  to  the 
county  treasurer,  as  provided  in  section  33.  Previous  to 
1870,  such  actions  were  to  be  brought  by  the  board  of  com- 
missioners of  excise,  who  were  then  county  officers,  and  the 
cases  hereinafter  cited  are  in  the  main  relative  to  actions 
brought  by  them  ;  but  as  the  overseers  of  the  poor  now  act 
in  the  same  capacity  as  the  board  of  commissioners  of  excise 
formerly  did  in  bringing  actions  for  penalties  under  the  ex- 
cise laws,  we  may  read  understandingly,  by  using  town  and 


EXCISE  AND  HOTEL  LAWS. 


103 


town  officers  in  place  of  county  and  county  officers,  and 
overseers  of  the  poor  in  place  of  commissioners  of  excise. 

The  overseer  of  the  poor  may  employ  an  attorney  to 
prosecute  for  penalties,  and  as  they  are  agents  for  the  town 
in  so  doing,  the  compensation  for  such  services  are  a  town 
charge,  but  can  only  be  collected  by  audit  of  the  town  board. 
Liberty  has  been  taken  above  to  substitute  certain  words  in 
place  of  others  in  order  to  conform  to  the  present  condition 
of  the  statute.  {Buck  v.  City  of  Lock-port,  6  Lans.,  251; 
People  ex  rel.  Johnson  v.  Supervisors,  45  K".  Y.,  196.)  The 
expenses  of  witnesses  and  official  fees  are  governed  by  the 
same  rule.  (Id.;  People  ex  rel.  Kelly  v.  Haws,  21  How., 
117.) 

As  stated  {ante,  §  1),  the  overseer  must  be  sure  of  the 
regularity  by  which  he  holds  his  office,  when  he  brings  an 
action  as  such,  as  the  defendant  may  set  it  up  as  a  matter 
of  defense  ;  but  when  he  comes  into  court  he  may  prove  the 
character  in  which  he  sues,  by  reputation,  after  which  the 
burden  would  be  upon  the  defendant.  {Blatchley  v.  Mosier 
and  ano.,  15  Wend.,  215;  Abbott's  Trial  Evidence,  40.) 

The  overseer,  in  bringing  actions  for  x>enalties,  must  stand 
or  fall  as  a  town  official.  He  cannot  mix  his  personality 
with  his  official  position.  He  is  solely  the  instrument  of  the 
town  in  seeing  the  law  executed,  when  it  is  right  and  proper 
for  him  so  to  do.  He  should  be  above  bribery  or  undue 
influence.  Indeed,  he  is  intrusted  with  important  public 
duties. 

His  first  care,  when  complaints  are  made  to  him,  should  be 
to  investigate  and  decide  if  there  is  reasonable  proof  of  the 
alleged  infringement.  If  he  neglects  or  unreasonably  re- 
fuses to  prosecute,  the  law  places  it  within  the  power  of  any 
other  person  to  prosecute  for  the  penalties  in  his  name. 
(Section  41.)  This  will  be  disagreeable  to  all  concerned,  and 
the  town  is  thereby  prohibited  from  having  its  own  agent 
attending  to  its  business. 

As  stated  above,  his  personal  and  official  duties  are  en- 
tirely separate.  In  one  case  an  overseer  borrowed  money  of 
the  defendant ;  he  afterward  brought  an  action  against  him 
for  a  penalty,  for  selling  liquor  without  a  license.  The  de- 
fendant set  up  the  borrowed  money  as  a  counterclaim.  The 


104 


EXCISE  AND  HOTEL  LAWS. 


court  held  this  to  be  improper.  (Denniston  v.  Trimmer, 
27  Hun,  393.)  The  statute  does  not  authorize  an  overseer, 
as  such,  to  borrow  money,  and  if  he  does  so  it  is  as  a  private 
individual  and  not  as  a  town  official.  (Id.) 

When  Brought  by  Other  Persons. — Section  41  confers  the 
right  upon  others  than  overseers  to  bring  the  action  for  pen- 
alties, where  complaint  and  reasonable  proof  of  a  violation 
of  some  provision  of  the  excise  law,  has  been  made  and  pre- 
sented the  overseer,  and  he  has  neglected  or  refused  to 
prosecute  for  the  penalty. 

Care  should  be  exercised  in  every  case  of  that  kind,  other- 
wise the  person  may  become  liable  to  pay  the  costs  of  the 
prosecution.  If  he  brings  the  action  without  a  full  compli- 
ance with  the  preliminaries  laid  down  to  entitle  the  action 
to  be  so  commenced,  he  will  be  personally  liable  for  costs. 
(Jobbit  v.  Giles,  22  Hun,  274.) 

A  difficulty  may  arise,  however,  when  he  has  complied 
with  the  statutory  requirements.  After  the  action  has  been 
regularly  brought,  the  defendant  may  make  a  motion  to 
compel  security  for  costs,  under  section  3271  of  the  Code  of 
Civil  Procedure,  and  it  is  within  the  discretion  of  the  court 
whether  to  order  it  or  not.  The  contrary  rule  was  held  in 
Board  of  Commissioners  of  Excise  v.  McGrath  (27  Hun, 
425);  but  in  Sharp  v.  Fancher  (29  id.,  193),  the  case  in  27 
Hun  was  held  not  to  be  binding,  as  that  question  was  not 
necessary  to  the  decision  of  the  case  then  before  the  court. 
(See,  also,  Board  of  Commissioners  v.  Cassiater,  62  How., 
113.)  This  question  has  not  yet  been  decided  by  the  Court 
of  Appeals,  and  until  it  is  the  case  of  Sharp  v.  Fancher 
(supra)  must  be  accepted  as  binding. 

The  complaint  to  the  overseer  should  be  so  definite,  and 
should  be  accompanied  with  such  proof,  as  to  satisfy  the 
overseer  that  a  penalty  has  been  incurred,  or  to  enable  him 
to  investigate  and  decide  whether  or  not  there  has  been  a 
violation  of  the  statute.  (Jobbit  v.  Giles,  22  Hun,  274.)  In 
this  case  there  was  a  complaint  j)resented  under  oath,  on  in- 
formation and  belief,  but  making  only  general  charges  of 
sales  of  all  sorts  of  liquors,  naming  kind,  and  in  each  of  five 
months  of  the  year,  but  specifying  no  person  to  whom  any 
sale  or  any  amount  had  been  sold.    The  court  held  such  a 


EXCISE  AND  HOTEL  LAWS. 


105 


complaint  and  such  proof  insufficient,  and  the  party  com- 
mencing the  action  was  charged  with  the  costs.  (See,  also. 
Barlow  v.  Pease,  5  Hun,  564;  Sutter  ex  rel.  Reeve  v.  Fauble, 
25  id.,  195;  Hess  v.  Appell,  62  How.,  313.) 

Where,  however,  the  action  has  been  once  properly 
brought,  the  overseer  cannot  discontinue  the  action  with- 
out the  parties  consent.  (Record  v.  Messenger,  8  Hun, 
283.)  Should  any  other  person  commence  the  action  in  the 
name  of  the  overseer,  without  having  made  the  proper  com- 
plaint and  furnished  the  "satisfactory"  proof,  the  overseer 
may  move  to  discontinue  the  action.  (Hess  v.  Appell,  62 
How.,  313.)  As  to  what  is  necessary  to  enable  some  other 
person  to  bring  the  action  in  the  name  of  the  overseer,  see 
Hess  v.  Appell  (62  How.,  313),  Board  of  Commissioners  v. 
Purdy  (36  Barb.,  266),  Thayer  v.  Lewis  (4  Den.,  270),  Job- 
lit  v.  Giles  (22  Hun,  274),  Barlow  v.  Pease  (5  id.,  564). 

How  Brought  and  Maintained. — In  bringing  an  action 
for  a  penalty,  where  the  summons  is  served  without  the 
complaint,  there  must  be  indorsed  upon  the  copy  of  the 
summons  served  a  reference  to  the  statute  giving  the  penalty 
in  substance,  as  follows :  ' '  This  action  is  brought  in  ac- 
cordance with  the  provisions  of  [here  insert  the  section, 
chapter  and  year  of  passage  of  the  act  under  which  the 
action  is  brought,  as  stated  at  the  bottom  of  the  statute 
sections  of  this  worJc\  (Section  1897,  Code  of  Civil  Pro- 
cedure.) 

If  the  complaint  is  served  with  the  summons,  no  endorse- 
ment referring  to  the  statute  is  necessary.  (Thayer  v. 
Lewis,  4  Denio,  269.)  The  action  maybe  entitled  as  fol- 
lows :  John  Doe,  as  overseer  of  the  poor,  etc.,  against  Rich- 
ard Roe.  (Hait  v.  Benson,  18  How.,  303.)  It  seems  the 
action  may  also  be  entitled:  "The  Overseer  of  the  Poor, 
etc.,  against  Richard  Roe,"  without  naming  the  overseer  by 
name,  but  this  is  not  recommended. 

The  overseers  have,  like  commissioners  of  excise,  reasona- 
ble discretion  in  many  instances,  and  where  judgment  or 
discretion  is  allowed  by  law  to  be  exercised,  a  mandamus 
will  not  lie  to  compel  the  officer  to  act.  (People  v.  Fair- 
child,  67  N.  Y.,  334  ;  Perry  v.  Tynen,  22  Barb.,  137.)  Yet 
when  it  is  necessary  to  compel  the  officer  to  do  his  duty 


106 


EXCISE  AXD  HOTEL  LAWS. 


that  is  plainly  pointed  out,  a  mandamus  is  the  proper  remedy. 
{People  ex  rel.  Hammond  v.  Leonard,  74  N.  Y.,  445.)  An 
overseer  cannot  be  compelled  to  continue  an  action  for  a 
penalty  where  he  is  satisfied  that  his  action  is  not  main- 
tainable. (Id.) 

It  may  be  urged  that  all  actions  for  penalties  should, 
under  section  1962  of  the  Code  of  Civil  Procedure,  be 
brought  by  the  district  attorney  or  the  attorney-general, 
but  the  answer  to  that  is,  that  the  ' '  poor  of  the  county  or 
town  are  not  the  people;''  therefore  the  penalties  to  be 
prosecuted  for  by  the  overseers,  and  which  are  for  the 
benefit  of  the  poor,  are  not  £ '  penalties  incurred  to  the  peo- 
ple of  the  State,  or  to  an  officer,  for  their  use,"  as  stated 
in  section  1962.  The  attorney-general,  in  an  action  brought 
by  him,  represents  the  whole  people  and  a  public  interest, 
and  not  mere  individual  rights.  {People  v.  Brooklyn,  F. 
and  C.  I.  JR.  Co.,  89  N.  Y.,  76,  93.) 

Power  is  conferred  upon  overseers  of  the  poor  to  bring 
actions  for  penalties,  although  the  cause  of  action  accrued 
before  the  commencement  of  their  term  of  office.  (Section 
1926,  Code  of  Civil  Procedure.) 

In  prosecutions  for  a  penalty,  the  plaintiff  need  not  prove 
disqualification  of  defendant,  such  as  that  he  sold  without 
a  license.  The  onus  is  upon  the  defendant.  It  must  be 
alleged,  but  need  not  be  proved.  It  is  a  fact  peculiarly 
wTithin  defendant's  knowledge,  and,  therefore,  the  burden 
of  proof  is  upon  him  to  show  that  he  had  a  license.  {Pot- 
ter v.  Deyo,  19  Wend.,  361;  Harris  v.  White,  81  N.  Y.,  548; 
Fleming  v.  People,  27  id.,  329.) 

It  has  been  held  in  certain  cases  that  only  one  penalty 
could  be  collected  for  an  offense  described  in  any  one 
statute.  Such  was  the  decision  in  the  case  of  Washburn  v. 
Mclnroy  (7  John.,  134),  under  the  excise  law,  as  contained 
in  the  first  revised  laws,  page  176,  section  7.  This  statute 
did  not,  however,  contain  the  same  phraseology  as  our  pres- 
ent excise  laws.  The  term  there  used  was,  "  Shall  forfeit 
twenty-five  dollars,"  while  the  corresponding  section  now 
adds,  "For  each  offense."  Under  another  statute  giving  a 
penalty,  the  court  held  {Fisher  v.  N.  Y.  C.  and  H.  JR.  JR.  B. 
Co.,  46  N.  Y.,  659)  :  "But  one  penalty  can  be  recovered 


EXCISE  AND  HOTEL  LAWS. 


107 


for  all  offenses  committed  prior  to  the  commencement  of  the 
action." 

But  in  Suydam  v.  Smith  (52  N.  Y.,  388,  389),  the  forego- 
ing cases  were  distinguished,  and  it  was  there  held  in  sub- 
stance that,  where  a  statute  gives  a  penalty  for  eacli  offense, 
that  all  the  different  offenses  proven  under  such  a  statute 
may  be  recovered  in  one  action,  notwithstanding  they  are 
of  the  same  nature,  if  they  are  charged  and  proved  as  having 
been  committed  at  different  times.  This  may  be  regarded 
as  the  settled  practice.  Care  should  be  taken,  however,  to 
make  the  charge  in  the  complaint  conform  to  the  offense 
named  in  the  particular  statute  under  consideration,  and 
then  the  proof  must  conform  to  the  allegations  in  the  com- 
plaint. 

A  complaint  for  selling  liquor  without  a  license,  will  not 
be  upheld  by  proof  that  a  store-keepeer  with  a  license  sold 
liquor  to  be  drank  upon  the  premises,  although  had  such  a 
charge  been  made,  and  such  proof  furnished,  the  action 
might  have  been  maintained. 

In  an  action  to  recover  a  penalty  under  section  26,  for  the 
sale  of  liquor  to  a  minor  under  eighteen  years  of  age,  the 
plaintiff  has  the  burden  of  showing  that  the  defendant  knew 
or  had  reason  to  believe  that  the  person  to  whom  the  sale 
was  made  was  under  the  age  of  eighteen  years.  The  words 
of  the  statute  apply  to  minors  as  well  as  apprentices.  {Perry 
v.  Edwards,  44  N.  Y.,  223.)  This  is  as  applicable  since  the 
amendment  of  section  15  of  the  act  of  1857,  as  before ;  the 
change  does  not  effect  this  decision.  This  rule  would  proba- 
bly apply  to  other  cases  where  the  innkeeper  is  to  exercise 
his  judgment.    (Id.,  228.) 

When  a  statute  declares  both  a  penalty  and  a  misde- 
meanor for  doing  any  one  act  named,  like  selling  liquor 
without  a  license,  they  are  entirely  independent  of  each 
other,  and  a  conviction  for  the  offense  is  no  bar  to  an  action 
for  the  penalty,  and  vice  versa.  {People  v.  Stevens,  13 
Wend.,  341;  Blatchley  v.  JSIosier,  15  id.,  215.) 

The  action  for  penalties  against  hotel,  saloon  and  store- 
keepers, are  generally  caused  by  some  citizen,  or  class  of 
citizens,  who  are  adverse  to  a  free  and  untrammeled  traffic  in 
intoxicating  liquors,  and  the  proof  in  support  of  the  alleged 


108 


EXCISE  AND  HOTEL  LAWS. 


violations  are  furnished  by  informers  or  evidence  prepared 
for  the  purpose  of  conviction,  and  in  such  cases  the  licensee 
claims  frequently  that  the  informer  and  plaintiff  are  parti - 
ceps  criminis  with  the  offender,  and  that  the  action  ought 
not  to  be  maintained. 

In  the  case  of  Tlie  Board  of  Commissioners  of  Excise  of 
Onondaga  County  v.  Backus  (29  How.,  33),  the  court  in- 
dulges in  some  facetious  remarks  upon  that  subject,  and 
others  arising  in  the  case.  The  informer  called  for  gin,  and 
got  what  he  thought  was  whiskey,  and  paid  for  it.  The  de- 
fendant claimed  there  was  no  proof  of  the  offense  charged. 
The  court  held  that  although  the  witness  might  not  be  cor- 
rect in  what  he  thought  the  liquor  was  that  it  was  near 
enough  to  the  fact.  That  as  the  witness  called  for  gin,  and 
the  liquor  was  furnished  in  pursuance  of  the  call,  the  de- 
fendant cannot  deny  that  it  was  gin,  although  it  might  have 
been  whiskey.  That  the  defendant  having  christened  it  and 
sold  it  as  gin  that  he  cannot  repudiate  his  own  offspring, 
when  its  legitimacy  is  called  in  question,  and  so  gin  it  must 
remain.  The  court  also  held  that  the  plaintiffs  were  not, 
even  on  the  assumption  that  the  witness  was  an  informer 
and  bought  the  gin  under  the  plaintiffs  direction,  particeps 
criminis  and  pari  delicto  so  as  to  prohibit  a  recovery. 

One  having  a  license  to  sell  lager  beer  cannot  sell  and 
deliver  the  same  outside  of  his  own  town  and  in  a  town 
where  no  licenses  are  granted.  A  licensed  brewer  in  Glens 
Falls,  through  an  agent,  took  and  filled  orders  for  the  sale 
of  bottled  lager  beer.  The  agent  received  an  order  from 
Corinth,  a  town  where  there  were  no  licenses  granted,  for  a 
case  of  such  beer.  The  Glens  Falls  dealer  filled  the  order 
by  delivering  the  beer  at  Corinth,  where  the  agent  was  paid 
by  the  purchaser.  This  was  held  to  be  a  sale  at  Corinth, 
and  the  agent,  who  was  the  defendant,  could  not  justify 
under  the  license  of  his  principal,  but  was  held  liable  for 
selling  beer  in  Corinth  without  a  license.  This  was  a 
criminal  prosecution,  but  the  principle  would  be  the  same 
in  an  action  for  a  penalty.    {People  v.  Capen,  26  Hun,  377.) 

A  husband  is  liable  for  a  penalty  for  his  wife  selling 
liquor  without  a  license.  (Hasbrouck  v.  Weaver,  10  John., 
247;  Board  of  Commissioners  v.  Keller,  20  How.,  280; 


EXCISE  AND  HOTEL  LAWS. 


109 


Scliaus  v.  Putscher,  25  id.,  463;  Horton  v.  Payne,  27  id., 
374;  Commissioners  of  Excise  v.  Dougherty,  55  Barb.,  332; 
Smith  v.  Reynolds,  8  Hun,  128.) 

An  agent  is  personally  liable  for  his  own  wrongful  acts, 
and  he  cannot  relieve  himself  by  claiming  that  he  acted  as 
agent.  An  agent  selling  on  Sunday,  or  where  he  or  his 
principal  has  no  license,  is  liable  for  the  sale.  {Board  of 
Commissioners  of  Excise  v.  Dougherty,  55  Barb.,  332.) 

As  to  well  known  beverages,  such  as  whiskey,  brandy, 
gin,  wine  and  strong  beer,  the  courts,  without  proof,  acting 
upon  their  own  knowledge,  derived  from  observation,  will 
take  notice  that  they  are  all  intoxicating,  and  require  no 
proof  of  the  fact.  {Ran  v.  The  People,  63  N.  Y.,  279.)  It 
is  not  necessary  to  constitute  an  olfense  for  selling  liquor 
without  a  license  that  the  wine  should  be  intoxicating. 
{Schwab  v.  People,  4  Hun,  520.) 

SECTION  Y. 

Actions  ox  Bonds. 

The  statutes,  sections  18  and  23,  provide  for  the  taking  of 
bonds  from  innkeepers  and  store-keepers  procuring  licenses, 
and  section  45  adds  vendors  of  ale  and  beer  to  the  above. 
The  penalties  and  conditions  of  said  bonds  are  stated  in  the 
above  sections.  It  is  made  the  duty  of  several  different 
officers  to  attend  to  the  breach  of  the  conditions  of  such 
bonds.  (Section  35.)  They  cannot  sue  in  their  own  names 
alone,  but  the  action  should  be  brought  as  follows:  "The 
People  of  the  State  of  ~New  York,  on  the  relation  of  John 
Doe,  Supervisor  of  the  town  of  Knox,  against  Richard  Roe." 
Or  it  may  be  brought  in  the  name  of  the  people  only,  and 
as  this  has  been  recognized  by  the  general  term  as  a  correct 
way  it  may  be  well  to  follow  the  precedent.  {People  v. 
Groat,  22  Hun,  164.) 

The  above  was  an  action  upon  a  bond  for  keeping  a  gam- 
ing table,  to  wit :  a  billiard  table,  by  a  hotel  keeper,  which 
has  been  declared  to  be  a  breach  of  the  condition  of  the 
bond.  It  was  there  held  that  the  bond  might  be  recovered 
upon,  although  it  had  no  seal.  The  overseers  of  the  poor 
cannot  bring  an  action  on  a  hotel  or  store-keeper's  bond. 


110 


EXCISE  AND  HOTEL  LAWS. 


Previous  to  the  Code  of  Civil  Procedure  this  action  could 
have  been  brought  by  any  attorney  employed  by  either  of 
the  parties  mentioned  in  section  35;  but  by  section  1962  of 
the  Code  of  Civil  Procedure  a  penalty  incurred  to  the  people 
of  the  State,  or  to  an  officer  for  their  use,  pursuant  to  a  pro- 
vision of  law,  the  attorney-general  or  the  district  attorney 
of  the  county  in  which  the  action  is  triable  must  bring  the 
action  to  recover  the  penalty. 

There  is  no  provision  in  section  35,  however,  declaring  to 
whom  the  penalty  recovered  upon  a  forfeited  bond  shall  be 
paid,  while  section  1963  of  the  Code  of  Civil  Procedure 
declares  that  where  the  recovery  is  not  otherwise  specially 
granted  or  appropriated  by  law,  it  must,  when  collected,  be 
paid  into  the  treasury  of  the  State.  If  to  the  people  of  the 
State,  or  to  any  officer  for  their  use,  then  the  district  attor- 
ney or  the  attorney-general  should  bring  the  action  ;  but  if 
the  penalty  is  to  be  paid  over  for  the  use  of  the  poor  of  the 
town  or  county — as  are  the  other  penalties  under  the  excise 
law — or  to  the  parties  bringing  the  action  and  recovering  the 
penalty  (section  35),  then  it  is  not  to  the  people  of  the  State 
or  to  an  officer  for  their  use,  when  the  action  may  be  brought 
and  conducted  as  before  the  Code  of  Civil  Procedure. 

The  case  of  The  People  v.  Groat  (22  Hun,  164),  was  held 
to  be  properly  brought,  but  the  court  in  that  case  did  not 
expressly  declare  who  should  receive  the  money  when  re- 
covered. The  court  there  declared  that  there  are  no  cestuis 
que  trusts  for  whom  the  people  can  be  said  to  hold  such  a 
bond.  It  is,  therefore,  until  the  Court  of  Appeals  shall  pass 
upon  this  question,  uncertain  what  course  to  direct,  other 
than  to  apply  to  the  attorney-general  for  permission  to 
bring  such  an  action,  and  get  the  force  of  his  opinion  in 
that  manner  before  venturing  upon  an  untried  held. 

In  this,  as  in  all  actions  for  penalties,  if  the  complaint 
is  not  served  with  the  summons,  a  general  reference  to  the 
statute  must  be  indorsed  upon  the  copy  of  the  summons 
delivered  to  the  defendant,  as  follows :  "According  to  the 
provisions,  etc."    (See  section  1897,  Code  Civil  Procedure.) 

As  to  what  is  a  disorderly  house,  see  Gardner  v.  Bain  (5 
Lans.,  256.) 

The  bond  is  broken  when  the  hotel  proprietor  keeps  a 


EXCISE  AND  HOTEL  LAWS. 


Ill 


billiard  table  for  use  in  his  inn,  when  the  rule  is,  that  the 
winning  party  in  the  game  is  to  pay  the  proprietor  for 
the  use  of  the  table.  The  same  rule  would  apply  where 
the  landlord  keeps  dice  for  his  customers  to  throw  for 
drinks  or  cigars,  the  loser  to  pay  for  both.  There  can  be 
no  difference  in  the  rule.  (See  notes  at  end  of  People  v.  Ser- 
geant, 8  Cow.,  141.)  The  extreme  rigor  of  the  rule  will  be 
found  enforced  in  People  v.  Cutler  (28  Hun,  465). 

"  The  defendant  kept  a  public  saloon  to  which  persons 
resorted  for  the  purpose  of  playing  pool  and  bagatelle.  In 
some  cases  the  losers  were,  by  the  terms  of  the  game,  to 
pay  for  the  use  of  the  apparatus,  and  in  others  for  the 
drinks.  Held,  that  the  house  was  a  public  nuisance  at  com- 
mon law,  and  that  persons  who  resorted  to  it  were  gamesters 
within  the  meaning  of  subdivisions  4  and  7  of  section  899 
of  the  Code  of  Criminal  Procedure.  (Id.;  also,  see  Tanner 
v.  Trustees  of  Albion,  5  Hill,  121.) 

The  playing  of  games  for  beer  or  cigars  is  gambling  within 
the  meaning  of  chapter  504  of  the  Laws  of  1851.  (HitcMns 
v.  People,  39  1ST.  Y.,  454.)  It  is  sufficient,  to  establish  guilt, 
to  prove  that  the  defendant,  occasionally,  knowingly  per- 
mitted gambling  in  his  office.  It  is  not  necessary  to  prove 
that  he  habitually  did  so.  (Id.) 

The  substance  of  the  act  of  1851  has  been  re-enacted  in 
the  Penal  Code,  sections  343  and  344,  so  that  any  of  the 
usual  methods  adopted  in  many  hotels  to  decide  who  shall 
pay  for  drinks,  cigars  or  games,  which  go  to  the  proprietor, 
are  gambling,  and  break  the  conditions  of  the  bond. 

The  Code  of  Criminal  Procedure  defines  who  are  disor- 
derly persons,  and  subdivisions  4,  7  and  8  of  section  899, 
are  specially  applicable  in  this  connection.  Subdivision  4 
reads :  ' '  Keepers  of  bawdy  houses,  or  houses  for  the  re- 
sort of  prostitutes,  drunkards,  tipplers,  gamesters,  habitual 
criminals  or  other  disorderly  persons."  Subdivision  7. 
''Persons  who  keep,  in  a  public  highway  or  place,  an  appa- 
ratus or  device  for  the  purpose  of  gaming,  or  who  go  about 
exhibiting  tricks  or  gaming  therewith."  Subdivision  8. 
"Persons  who  play,  in  a  public  highway  or  place,  with 
cards,  dice  or  other  apparatus  or  device  for  gaming,"  are 
disorderly  persons. 


112 


EXCISE  AND  HOTEL  LAWS. 


The  statute  in  relation  to  a  hotel  bond,  in  the  light  of 
these  provisions  and  authorities,  will  be  easily  understood. 
To  harbor  disorderly  persons,  is  allowing  the  hotel  to  be 
disorderly.  It  will,  therefore,  be  seen  that  many  of  the 
lower  order  of  hotels  are  disorderly  within  the  meaning  of 
the  statute,  and  all  that  is  required  to  compel  a  proper  com- 
pliance with  the  terms  of  the  bond  in  such  cases,  is  a  dili- 
gent effort  on  the  part  of  the  better  class  of  hotel  keepers, 
as  well  as  the  officers  of  the  town,  whose  duty  it  is  to  prose- 
cute the  bond.  Yet,  with  all  the  power  of  the  State  to 
assist,  without  a  public  sentiment  to  go  hand  in  hand  with 
the  law,  it  will  be  useless  to  undertake  the  task. 

If  such  bonds  fall  within  section  1962  of  the  Code,  as  has 
been  intimated,  then  whenever  the  local  authorities,  to  whom 
is  given  the  power  to  prosecute,  shall  be  presented  with 
proper  proof,  or  become  otherwise  satisfied  that  a  breach 
of  such  bond  has  taken  place,  it  will  be  their  duty  to  pre- 
sent such  proof  to  the  district  attorney  of  the  county,  or 
the  attorney-general  of  the  State,  and  request  him  to  prose- 
cute the  bond  and  recover  the  penalty,  and  it  will  be  the 
duty  of  such  officer  to  commence  the  prosecution.  In  prac- 
tice, the  attorney  of  the  local  authorities  will  be  allowed  to 
conduct  the  prosecution,  using  the  name  of  the  district  at- 
torney or  the  attorney-general  as  attorney,  and  in  no  other 
way  will  they  be  connected  with  the  case  after  it  is  once 
commenced. 

It  is  no  defense  to  an  action  on  a  bond  that  it  is  not  under 
seal.    {Peoples.  Groat,  22  Hun,  164.) 

SECTIOX  VL 
Indictments. 

It  is  seldom  since  the  enactment  of  section  56  of  the  Code 
of  Criminal  Procedure,  that  an  indictment  will  be  had  for 
any  offense  under  the  excise  law  of  this  State.  The  only 
method  of  doing  so  is  by  section  57  of  that  Code.  This  is 
a  proceeding  to  be  taken  only  by  the  accused,  he  being 
under  the  necessity  of  procuring  a  certificate  from  the 
county  judge,  or  a  justice  of  the  supreme  court,  that  it  is 
reasonable  that  the  charge  against  him  be  presented  by  in- 


EXCISE  AND  HOTEL  LAWS. 


113 


dictment,  etc.  It  is  not  a  privilege,  on  his  part,  to  be  so 
proceeded  against,  but  lie  must  convince  the  judge  to  whom 
he  makes  application,  that  it  is  proper  to  have  his  case  take 
a  different  course  than  that  provided  for  such  offenser  gen- 
erally. But  as  it  is  possible  that  some  case  may  be  so  tried, 
a  few  authorities  on  the  subject  of  indictments  may  be 
necessary. 

Defects  in  form  are  to  be  disregarded  which  do  not  preju- 
dice the  substantial  rights  of  the  defendant  upon  the  merits. 
(Section  285,  Code  Criminal  Procedure.)  As  to  the  practice 
previous  to  the  Criminal  Code,  see  People  v.  Adams  (17 
Wend.,  475).  An  indictment  for  selling  without  a  license 
will  not  be  upheld  by  proof  that  a  store  keeper  sold  liquor 
to  be  drank  on  the  premises.  {Huff stater  v.  People,  5  Hun, 
23;  People  v.  Buffium,  27  id.,  216.) 

The  exact  crime  should  be  charged.  In  above  cases  the 
allegations  should  have  been  that  defendant  sold  by  measure, 
to  be  drank  on  the  premises,  which  is  made  an  offense  dis- 
tinct from  that  of  selling  without  a  license. 

An  indictment  is  sufficient  in  form  if  it  contain  the  title 
to  the  action,  specifying  the  court  to  which  the  indictment 
is  presented,  and  the  names  of  the  parties,  and  a  plain  con- 
cise statement  of  the  act  constituting  the  crime  without 
unnecessary  repetition.  (Section  275,  Code  Criminal  Pro- 
cedure.) 

A  servant  is  protected  by  his  master's  license  to  the  same 
extent  as  his  master  would  be.  {People  v.  Buffum,  27  Hun, 
216.)  Defendant  was  indicted  for  selling  without  a  license  ; 
he  was  the  agent  of  a  licensee  under  a  store-keeper's  license, 
and  sold  to  be  drank  on  the  premises.    Held,  not  guilty. 

One  Ross  was  convicted  for  selling  liquor  to  a  minor 
under  fourteen  years,  under  section  26.  "The  minor,  a  boy 
ten  years  old,  testified  that  he  was  sent  to  purchase  the 
liquor  by  an  adult,  one'  Martin,  who  lived  in  the  house 
with  him,  and  who  furnished  the  money  to  buy  it ;  that  he 
brought  the  liquor  to  Martin  without  tasting  it ;  that  sub- 
sequently Martin  gave  him  a  drink,  by  reason  of  which  he 
became  intoxicated.  Held,  that  the  conviction  was  proper, 
and  that  the  fact  that  the  boy  was  acting  as  agent  for  an 

8 


114 


EXCISE  AND  HOTEL  LAWS. 


undisclosed  principal  did  not  release  Ross  from  the  penalty- 
imposed  by  statute."    {Ross  v.  People,  17  Hun,  591.) 

The  omission  in  an  indictment,  for  selling  liquor  at  retail 
to  be  drank  on  the  premises  without  having  an  innkeeper's 
license,  to  refer  to  the  exception  in  the  act  of  1809,  will  not 
render  it  void.  If  the  accused  can  bring  himself  within  the 
exception  he  should  do  so  by  proof.  {Jefferson  v.  People, 
15  N.  Y.  Weekly  Dig.,  542.)  In  an  indictment  for  selling 
liquor  without  a  license,  it  is  sufficient  to  allege  that  the 
liquor  was  sold  in  the  Ninth  ward,  without  stating  the  street 
or  number.    {Schwab  v.  People,  4  Hun,  520.) 

An  indictment  for  selling  liquor  charged  that  it  was  sold 
on  Sunday,  the  thirteenth  day  of  October ;  the  proof  was 
not  Sunday,  but  Monday ;  the  variance  was  held  imma- 
terial. {People  v.  Ball,  42  Barb.,  324.)  It  is  no  defense  to 
an  indictment  that  a  penalty  has  been  sued  for  and  re- 
covered for  the  same  offense.  {People  v.  Stevens,  13  Wend., 
341;  Blatchley  v.  Moser,  15  id.,  215.) 

SECTION  VII. 
Ale  and  Beer. 

It  was  for  several  years  a  vexed  question  whether  ale  and 
strong  beer  were  "strong  and  spirituous  liquors."  At  last 
the  matter  came  before  the  senate  of  the  State  as  a  court  of 
errors,  and  the  subject  received  an  exhaustive  review  by 
Chancellor  Walworth,  and  were  it  his  only  decision  it  would 
have  marked  him  as  a  man  of  great  ability  and  much  erudi- 
tion. The  action  was  brought  in  justice  court  for  selling 
liquor  without  a  license,  and  the  question  came  squarely 
before  the  court  as  to  whether  ale,  porter  and  strong  beer 
were  within  the  statute.  The  law  provided  then,  as  now, 
against  selling  6 '  strong  or  spirituous  liquors  or  wines ' ' 
without  a  license.  The  chancellor  reviewed  the  whole  his- 
tory of  "stroog  drink,"  as  mentioned  in  the  Scripture,  as 
well  as  the  products  of  the  still,  tracing  it  back  to  the  earliest 
times,  and  says  the  act  of  making  it  was  ascribed  to  Osiris, 
the  god  of  the  early  Egyptians,  corresponding  to  the  Bac- 
chus of  the  Romans.  Indeed,  as  a  matter  of  quaint  and 
ancient  lore,  it  will  be  interesting  reading  to  all.   He  finally 


EXCISE  AND  HOTEL  LAWS. 


115 


came  to  the  conclusion  that  if  the  human  stomach  could 
contain  enough  of  the  mixture  called  ale  and  strong  beer  to 
intoxicate  it  was  within  the  statute,  and  they  were  included 
in  the  terms  "strong  and  spirituous  liquors."  But  as  there 
were  other  liquids,  sometimes  called  strong  or  fermented 
beer,  not  within  the  statute,  that  an  admission  by  defendant 
that  he  had  sold  strong  or  fermented  beer  did  not  prove  him 
guilty  of  an  offense.  (JVevin  v.  Ladue,  3  Den.,  437.)  This 
doctrine  has  been  followed  and  adhered  to  since  the  act  of 
1857.  (Board  of  Commissioners  of  Excise  v.  Freeoff,  17 
How.,  442;  Excise  Commissioners  v.  Taylor,  19  id.,  259.) 

In  the  latter  case  the  court  remarked,  "Now  that  ale, 
strong  beer,  porter  and  most  of  the  fermented  drinks  known 
in  this  country,  and  which  are  sold  at  public  houses  and 
groceries  by  the  drink,  can  and  do  produce  intoxication  to 
a  greater  or  less  extent,  and  that  such  is  the  ordinary  effect 
of  their  use  as  a  beverage  no  man  of  mature  years,  who  is 
not  strangely  oblivious  to  surrounding  and  passing  events, 
can  have  failed  to  observe.  (Id.,  265.)  The  Court  of  Ap- 
peals following  the  same  line  of  argument  held  any  liquor  is 
within  the  statute,  whether  fermented  or  distilled,  of  which 
the  human  stomach  can  contain  enough  to  produce  intoxi- 
cation. {Board  of  Commissioners  of  Excise  v.  Taylor,  21 
N.  Y.,  173.) 

In  63  New  York  the  question  again  arose,  and  the  court 
held  that  if  it  was  shown  that  the  defendant  sold  lager  beer, 
and  evidence  was  given  tending  to  show  that  lager  beer  was 
intoxicating,  and  the  jury  believed  it,  they  should  convict. 
{Ran  v.  People,  63  X.  Y.,  277.)  And  as  to  lager  beer  it  has 
been  held  to  be  a  question  of  fact  generally.  (Taylor  v. 
People,  6  Park.  Cr.,  355;  In  the  Matter  of  the  People  v. 
Hart,  24  How.,  289;  3  Park  Cr.,  174.)  Judge  Earl  remarked, 
in  the  case  of  Ran  v.  People,  that  the  courts  have  not  been 
willing  to  take  notice  that  lager  beer  was  intoxicating,  but 
have  submitted  the  question  when  controverted  to  the  jury. 
(See,  also,  Dillman  v.  People,  4  N.  Y.  Week.  Big.,  251.) 
The  method  of  submitting  the  question  to  the  jury  was  dis- 
cussed in  the  case  of  The  People  v.  Schewe  (29  Hun,  122). 


116 


EXCISE  AND  HOTEL  LAWS. 


SECTION  VIII. 
Constitutionality  of  Excise  Laws. 

The  legislature  of  the  State  has  the  constitutional  right 
to  regulate  and  control  the  traffic  in  intoxicating  liquors. 
Licenses  are  permits,  not  property.  Regulations  to  prevent 
abuse  violate  no  constitutional  restrictions.  {Met.  Board 
of  Excise  v.  Barrie,  34  N.  Y.,  657;  People  v.  Quant,  12 
How.,  83;  Bertholf  v.  O  Reiley,  74  K  Y.,  509;  People  ex 
rel.  Pressmeyer  v.  Commissioners  of  Police,  59  id.,  92.) 

It  is  not  unconstitutional  for  villages  to  submit  the  ques- 
tion of  license  or  no  license  to  the  electors  ;  nor  for  the 
legislature  to  pass  ennabling  acts.  ( Village  of  Glover  smile 
v.  Howell,  70  N.  Y.,  287.) 

Section  23,  wherein  it  declares  that  whenever  any  person 
is  seen  to  drink  in  such  shop  or  house,  out-house,  yard  or 
garden  belonging  thereto  any  spirituous  liquors,  etc.,  that 
it  shall  be  prima  facie  evidence  that  such  spirituous  liquors 
or  wines  were  sold  by  the  occupant  of  such  premises,  or  his 
agent,  with  the  intent  that  the  same  should  be  drank  therein, 
is  unconstitutional,  as  depriving  the  accused  of  his  rights  to 
a  trial  by  jury.  {People  v.  Lyon,  27  Hun,  180,  citing  Bert- 
holf v.  0' Reiley,  74  1ST.  Y.,  509;  Hand  v.  Ballon,  12  id.,  543; 
Wynehamer  v.  People,  13  id.,  444.) 

SECTION  IX. 
Intoxication. 

The  question  frequently  arises,  under  the  excise  law, 
whether  a  person  is  intoxicated  or  not.  Innkeepers  and 
others  are  liable  to  a  penalty  for  selling  to  all  intoxicated 
persons,  and  it  is  made  an  offense  to  be  intoxicated  in  a 
public  place,  so  it  is  a  nice  distinction  which  officers,  magis- 
trates and  innkeepers  are  directed  to  draw.  What  a  physi- 
cian might,  and  many  times  does,  fail  in  knowing,  persons 
who  sell  or  give  away  liquor  are  bound  to  know  under  a 
penalty.  The  same  nice  distinction  must  be  exercised  in 
the  obedience  of  other  sections  of  the  excise  law — such  as 
who  are  habitual  drunkards  ? 

In  the  case  of  McGinley  v.  IT.  S.  Life  Ins.  Co.  (8  Daly, 
394),  this  question  is  reviewed.    It  is  there  stated,  "The 


EXCISE  AND  HOTEL  LAWS. 


117 


principles  involved  in  the  question  as  to  whether  the  habits 
of  life  of  a  person  are  temperate  or  not,  are  questions  of 
extreme  delicacy  and  oftentimes  of  great  importance.  It, 
perhaps,  cannot  be  claimed  that  the  mere  use  of  alcoholic 
stimulants  constitutes  intemperance ;  nor  is  there  any  fixed 
rule  or  standard  of  such  general  application  that  we  can 
plainly  discern  where  temperance  ends  and  inebriety  begins. 
Necessarily  then  each  case  of  this  character  must  be  deter- 
mined upon  its  own  particular  facts.  Slight  indulgence  may 
produce  drunkenness  in  A.,  while  repeated  indulgences  fail 
to  effect  B.  It  would  thus  appear  that  the  test  between 
sobriety  and  inebriety  is  the  effect  produced  on  each  indi- 
vidual by  the  use  of  alcoholic  liquors.  It  is  a  question  for 
a  jury. ' ' 

It  is  a  question  for  a  jury  in  an  action  for  an  injury  by 
falling  through  a  sidewalk  whether  the  intoxication  con- 
tributed to  the  injury.  (Healy  v.  Mayor  of  New  York,  3 
Hun,  708.) 

An  habitual  drunkard  is  not  incompetent  to  execute  a 
deed ;  he  is  simply  incompetent,  upon  proof  that,  at  the 
time,  his  understanding  was  clouded,  or  his  reason  dethroned 
by  actual  intoxication,  or  upon  proof  of  general  unsound- 
ness of  mind.   (  Van  WycJc  v.  Brasher  et  ah,  81  X.  Y.,  260.) 

Its  Effect  in  Crime. — In  the  case  of  the  People  v.  Oava- 
naugli  (62  How.,  195),  Mr.  Justice  Osborn  charged  the  jury 
as  follows  :  ''Intoxication  is  no  defense  to  a  crime.  If  the 
prisoner,  when  he  committed  the  act,  was  in  such  a  state  of 
mind  as  not  to  know  the  character  of  the  act  he  was  doing, 
or  not  to  know  the  difference  between  right  and  wrong,  then 
he  would  not  be  responsible  for  his  act." 

In  the  case  of  People  v.  (J Connelh  62  How.,  436,  it  was 
held,  "  drunkenness  in  itself,  simple  drunkenness,  whether 
it  is  of  limited  measure  or  whether  it  is  an  exception,  does 
not  constitute  insanity,  and  does  not  excuse  a  person  com- 
mitting an  act  from  the  responsibility  of  the  acr,  bur  if  a 
person  committing  an  act  or  doing  an  injury  is  in  a  state  of 
' '  delirium  trernems"  at  the  time,  and  is  therefore  rendered 
unable  to  determine  the  nature  or  the  quality  of  the  act, 
or  its  right  or  its  wrong,  then  he  is  relieved  from  the  re- 
sponsibility. 


118 


EXCISE  AND  HOTEL  LAWS. 


Drunkenness,  although  carried  to  the  extent  that  it  over- 
comes the  will,  and  incapacitates  from  controlling  the  action 
of  the  mind,  is  no  excuse  for  a  crime  ;  and  voluntary  intoxi- 
cation, although  amounting  to  a  frenzy,  does  not  exempt 
one  who  commits  a  homicide  without  provocation,  froni  the 
same  construction  of  his  conduct,  and  the  same  legal  infer- 
ences upon  the  question  of  intent,  as  affecting  the  grade  of 
his  crime,  which  are  applicable  to  a  person  entirely  sober. 
[Flanigan  v.  People,  S6  X.  Y..  554.) 

SECTION  X. 
Hotels  and  their  Keepers. 

Hotels,  inns  and  taverns  are  synonymous  terms.  {People 
v.  Jones.  54  Barb..  311:  Overseers  of  the  Poor  of  Crown 
Point  v.  Warner,  3  Hill,  150.)  As  to  what  is  an  inn,  tavern 
or  hotel,  see  chapter  5  of  this  work. 

As  to  what  a  licensed  hotel  keeper  should  keep  to  comply 
with  the  excise  law,  see  section  19.  chapter  1. 

A  hotel  keeper  cannot  assign  his  license  so  as  to  allow  any 
other  person  to  keep  hotel  and  sell  liquors  in  his  place  and 
stead.  A  sale  and  delivery  of  his  hotel,  or  an  assignment 
of  his  lease,  would  terminate  his  rights  under  his  license. 

The  subject  of  his  liability  under  the  "civil  damage  law" 
is  pointed  out  in  another  part  of  this  work. 

There  is.  however,  another  statute  which  may  entail  lia- 
bility upon  hotel  keepers  as  such.  By  chapter  5S3  of  the 
Laws  of  1S73.  it  is  enacted,  in  substance,  that  whenever 
the  lessee  or  occupant  or  other  owner  of  any  building  or 
premises  shall  use  or  occupy  the  same,  or  any  part  thereof, 
for  any  illegal  trade,  manufacture  or  other  business,  the 
lease,  etc..  shall  become  void,  and  the  landlord  may  re-enter, 
etc..  in  the  same  manner  as  a  tenant  holding  over  after  the 
expiration  of  his  lease. 

By  the  second  section  of  said  act.  any  owner  or  lessee 
allowing  his  premises  to  be  used  for  such  illegal  trade,  etc.. 
becomes  jointly  and  severally  liable  with  the  tenants  for 
any  damage  resulting  from  such  illegal  occupancy. 

Under  this  statute  selling  liquor  without  a  license  is  an 
illegal  trade  or  traffic,  and  the  owner  or  lessor,  who  has 


EXCISE  AND  HOTEL  LAWS. 


119 


rented  his  property  for  legitimate  purposes,  may  remove 
his  tenant  or  lessee  summarily,  for  such  use,  and  where  the 
property  has  been  snb  let  and  the  snb  tenant  uses  the  prop- 
erty in  that  manner,  the  landlord  may  proceed  directly 
against  the  sub  lessee.  (People  ex  rel.  Jap  v.  Bennett.  14 
Hun.  03.) 

He  who  knowingly  assists  a  wife  in  the  violation  of  her 
duty,  is  guilty  of  a  wrong  for  which  an  action  will  lie. 
This  was  held  to  be  so.  where  a  druggist  had  secretly  sold 
laudanum  to  the  wife  of  plaintiff  until  it  greatly  injured 
her.  It  was  also  held,  that  the  sale  of  liquor  under  like 
circumstances  to  a  wife,  by  which  the  husband  suffers  loss, 
would  make  the  vendor  liable.  {Hoard  v.  Peck,  56  Barb.. 
205.) 

SECTION  XL 
Practice. 

A  summons  issued  upon  a  suit  for  a  penalty,  should  have 
indorsed  upon  it  a  reference  to  the  statute  under  which  the 
action  is  brought,  but  a  substantial  compliance  will  answer. 
A  summons  was  issued,  and  indorsed,  "issued  according  to 
the  proceedings  of  title  9.  chapter  20,  part  first  of  the  He- 
vised  Statutes,"  and  it  was  held  a  sufficient  compliance  with 
the  statute.  {Andri  ws  v.  Harrington,  10  Barb..  343:  Perry 
v.  Tynan,  22  Barb..  137.)  If  the  complaint  is  served  with 
the  summons  no  such  indorsement  is  required. 

The  decision  of  a  board  of  excise  on  examination  under 
section  40,  is  not  reviewable  on  certiorari,  when  the  pro- 
ceedings have  all  been  legal.  (People  ex  ret.  FunJie  v.  Board 
of  Excise,  24  Hun,  105.  See,  however.  People  ex  rel..  etc., 
v.  Supervisors,  51  X.  Y..  442.) 

As  to  what  is  a  sufficient  complaint  in  justice  court  for  a 
penalty  under  the  excise  law.  see  Hall  v.  McKechnie  (22 
Barb.,  244). 

Liberality  in  pleadings  and  proceedings,  where  no  substan- 
tial right  is  jeopardized  or  destroyed,  prevail  the  same  in 
excise  proceedings  as  in  other  practice.  Even  in  criminal 
actions,  it  is  unnecessary  to  prove  the  precise  day  of  the 
offense,  and  in  entering  up  the  conviction  it  is  proper  to  in- 


120  EXCISE  AND  HOTEL  LAWS. 

sert  the  day  charged  in  the  complaint,  although  no  day  was 
proven.    {Tiffany  v.  Driggs,  13  John.,  253.) 

In  bringing  actions  for  penalties  for  violations,  the  pro- 
ceedings are  the  same  as  in  all  civil  actions,  except  the  in- 
dorsement npon  the  summons.  The  complaint  need  be  in 
no  particular  form,  except  it  must  comply  with  section  2936 
of  the  Code  of  Civil  Procedure.  It  must  state  in  a  plain 
and  direct  manner  the  facts  constituting  the  cause  of  action. 

The  answer  may  contain  a  general  denial  of  each  allega- 
tion of  the  complaint,  or  a  specific  denial  of  one  or  more  of 
the  material  allegations  thereof.  It  may  also  set  forth,  in  a 
plain  and  direct  manner,  new  matter  constituting  one  or 
more  defenses.    (Section  2938,  Code  Civil  Procedure.) 

Actions  for  penalties  being  of  a  quasi  criminal  nature,  and 
not  arising  out  of  contract  express  or  implied,  any  judgment 
obtained  for  a  penalty  or  for  costs,  will  entitle  the  prevailing 
party  to  an  execution  against  the  body  in  like  manner  as  for 
frauds,  torts  or  wrongs,  and  the  defendant  will  not  be  en- 
titled to  jail  liberties.  (Section  43,  chapter  1;  People  ex  rel. 
Brown  v.  Van  Hoesen,  62  How.,  76.) 

Under  section  28,  an  officer  seeing  an  offense  committed  is 
directed  to  arrest  the  offender,  without  a  warrant.  If  he 
neglect  for  ever  so  short  a  time  by  going  away  and  returning 
he  cannot  arrest  without  a  warrant.  The  shortness  of  time 
does  not  affect  the  merits,  and  for  such  an  arrest  without  a 
warrant  the  officer  is  liable  for  false  imprisonment.  {Myers 
v.  Clark,  41  N.  Y.  Sup'r  Ct.  Rep.,  107.) 

SECTION  XII. 
Miscellaneous  Provisions. 

There  are  various  other  questions  that  have  relation  to  the 
excise  laws  that  have  been  before  the  courts  of  this  State. 
Many  of  the  decisions  not  hereinbefore  cited  relate  specially 
to  cities,  city  ordinances  or  charters,  construction  of  statutes, 
etc.  Some  of  them  will  be  cited  at  the  close  of  this  section  ; 
but  particular  subjects  upon  which  they  treat  will  not  be 
given  except  in  a  general  way. 

An  ordinance  passed  by  a  municipal  corporation  prohibit- 
ing the  sale  of  spirituous  liquors  on  Sunday,  is  void,  as  pro- 


EXCISE  AND  HOTEL  LAWS. 


1*21 


hibiting  innkeepers  from  selling  liquors  to  their  lodgers  and 
lawful  travelers  pursuant  to  their  licenses.  ( Wood  v.  City 
of  Brooklyn.  14  Barb.,  425.)  Such  ordinances  maybe  en- 
forced when  they  do  not  conflict  with  general  laws.  [City 
of  Cohoes  v.  Moran,  25  How.,  385.) 

A  municipal  government  may  pass  ordinances  imposing 
new  and  superadded  penalties.  Every  sale  necessitates  an 
offer  of  the  goods  sold,  and  one  single  act  of  selling  cannot 
be  divided  into  two  offenses.  {City  of  Brooklyn  v.  Toynbee, 
31  Barb.,  282.) 

City  and  village  charters  may  provide  for  submitting  the 
question  of  license  or  no  license  to  the  people  of  the  district, 
and  where  their  charter  is  adopted  after  the  law  of  1857.  and 
it  contains  a  provision  that  actions  for  penalties  shall  be 
brought  in  the  corporate  name,  the  case  is  taken  out  of  the 
general  law  and  is  not  affected  by  the  amendment  of  1873, 
vesting  the  power  to  prosecute  in  the  overseers  of  the  poor. 
X"or  is  it  disturbed  by  chapter  444  of  the  Laws  of  1874. 
( Village  of  Gloversville  v.  Hoicell.  70  X.  Y.,  287.)  The  pro- 
visions in  the  charter  and  the  right  to  submit  to  vote  were 
held  to  be  constitutional.  The  act  of  1874  abolished  boards 
of  commissioners  of  excise  in  villages.  (Id.,  293.)  The  same 
rule  was  held  in  substance  in  the  case  of  People  ex  reL 
Stiner  v.  Morrison  (78  X.  Y.,  84). 

The  provisions  of  the  charter  of  the  village  of  Deposit, 
which  provides  for  the  payment  of  all  sums  received  for 
licenses  into  the  treasury  of  the  village,  is  not  repealed  by 
chapter  444  of  the  Laws  of  1874  creating  boards  of  excise 
for  the  several  counties  of  the  State.  (  Village  of  Deposit 
v.  Devereux,  8  Hun,  317.) 

For  effect  of  general  upon  special  statutes,  see  People  ex 
rel.  Stiner  v.  Morrison  (78  X".  Y.,  84),  Smith  v.  People  (47 
id.,  330).  People  v.  Gates  (56  id.,  387),  Village  of  Deposit  v. 
Di  vereux  (S  Hun,  317). 

As  to  the  repeal  of  special  statutes,  see  The  P tuple  v. 
Quigg  (59  X".  Y.,  S3),  Matter  of  Commissioners  of  Central 
Park  (50  id.,  493). 

The  courts  should  be  astute  to  find  out  some  meaning  to 
every  statute,  and  if  an  intent  can  be  spelled  out  fairly  from 
the  words  effect  should  be  given  to  that  intent,  though  not 


122 


EXCISE  AND  HOTEL  LAWS. 


artistically  expressed.  (Matter  of  Commissioner  of  Wash- 
ington Parte,  Albany,  52  N.  Y.,  131.) 

Tlie  attorney-general  has  written  opinions  upon  various 
questions  presented  to  Mm  by  inquiries,  and  although  not 
binding  upon  the  courts  they  may  throw  some  additional 
light  upon  the  questions  that  have  or  may  hereafter  arise. 
They  are  referred  to  according  to  number  and  may  be  ex- 
amined by  the  student  or  any  party  interested.  It  is  not 
thought  best  to  more  than  refer  to  them  here.  Number  418, 
427,  452,  456,  457,  458,  460,  461,  465,  469,  503,  514,  527,  537, 
553,  568. 

Decisions  having  special  application  to  cities  and  villages : 
18  N.  Y.,  38;  28  id.,  605;  78  id.,  84;  8  Hun,  317;  21  How., 
117;  31  Barb.,  142;  23  1ST.  Y.,  439;  63  id.,  623;  7  Hun,  345; 
11  id.,  289;  23  id.,  66;  6  Lans.,  251;  1  Keyes,  454;  26  N.  Y., 
467;  70  id.,  287;  5  Hun,  310;  21  id.,  244;  25  How.,  385;  23 
Wend.,  459;  2  Keyes,  132. 


EXCISE  AND  HOTEL  LAWS.  123 


CHAPTER  IV. 


TRE  CIVIL  DAMAGE  ACT. 

SECTION  I. 

General  Provisions  of  the  Statute. 

The  legislature,  by  chapter  646  of  the  Laws  of  1873,  passed 
what  is  known  and  called  "the  civil  damage  act'5  (ante, 
chapter  1,  sections  69  and  70),  and  which  has  been  decided 
to  be  a  part  of  the  excise  laws  of  the  State.  (FranJclin  v. 
Schermerhorn,  8  Hun,  112;  Baker  v.  Pope,  2  id.,  556.)  By 
the  said  act  every  husband,  child,  parent,  guardian,  em- 
ployer or  other  person,  who  shall  be  injured  in  person  or 
property,  or  means  of  support,  by  any  intoxicated  person, 
or  in  consequence  of  the  intoxication,  habitual  or  otherwise, 
of  any  person,  shall  have  a  right  of  action  against  the  per- 
son selling  the  liquor  producing  the  intoxication,  in  whole 
or  in  part,  or  against  the  owner  of  the  premises  renting  the 
same  or  having  knowledge  that  intoxicating  liquors  are  to  be 
sold  therein,  for  the  damages  sustained,  and  also  for  exemp- 
lary damages,  and  the  action  may  be  joint  or  several  against 
the  seller  and  the  owner  of  the  premises. 

Previous  Statutes. — The  only  provisions  previous  to  the 
passage  of  this  act,  by  which  damages  might  be  recovered 
against  the  person  selling  liquor,  were  by  section  1.  3  Re- 
vised Statutes  (6th  ed.),  page  732,  which  gave  a  right  of 
action  to  the  person  injured,  or  after  his  death  by  his  rep- 
resentatives, against  a  wrong-doer  for  wrongs  done  to  the 
property,  rights  or  interests  of  the  pers6n  injured  (ante, 
section  71) ;  and  by  section  28,  chapter  628,  1857  (ante,  sec- 
tion 39),  which  contains  the  germ  of  ''the  civil  damage 


124 


EXCISE  AND  HOTEL  LAWS. 


act,"  and  by  which  the  sale  of  strong  or  spirituous  liquors 
to  persons  to  whom  it  is  declared  by  said  act  unlawful  to 
make  such  sale,  rendered  the  person  selling  liable  to  the 
person  sustaining  injuries  thereby,  for  the  damages  sus- 
tained, the  sum  recovered  to  be  for  the  benefit  of  the  party 
injured.  And  under  said  sections  it  was  held  in  the  case  of 
KiZburn  v.  Coe  (48  How.,  144),  that,  damages  arising  from 
injuries  to  property,  sustained  by  an  habitual  drunkard, 
may  be  recovered  under  the  excise  law  against  any  person 
unlawfully  making  the  sale  of  the  liquor,  by  the  means  of 
which  the  injuries  arose.  Such  injury  to  the  habitual  drunk- 
ard being  against  his  property  or  estate,  as  distinguished 
from  a  mere  injury  to  his  person,  an  action  for  damages 
may  be  brought,  in  case  of  his  decease,  in  favor  of  the  ex- 
ecutors or  administrators  of  his  estate. 

The  justice  writing  the  opinion  in  the  above  case,  states, 
in  substance,  that  the  purchaser,  in  consequence  of  the  saler 
is  injured  by  the  unlawful  sale  to  the  amount  of  the  price 
paid,  and  may  maintain  an  action  for  the  same,  and  that 
' '  the  legislature  certainly  designed  to  go  so  far  by  the  en- 
anctment  of  the  section  (section  39,  ante)  as  to  apply  that  to 
the  case  of  a  person  unlawfully  obtaining  another's  money, 
by  the  sale  of  strong  or  spirituous  liquors." 

Section  19  of  the  act  of  1857  (a?ite,  section  30),  also  gives 
a  penalty  of  fifty  dollars  after  notice  in  certain  cases,  but  it 
will  be  observed  that  this  is  a  penalty,  and  not  for  damages 
resulting  from  the  sale  of  intoxicating  liquors. 

Cases  might  arise  where  an  action  could  not  be  maintained 
under  the  "  civil  damage  act,"  when  it  might  be  important 
to  rely  upon  the  foregoing  statutes. 

SECTION  II. 
A  New  Cause  of  Action  Created. 
By  the  enactment  of  the  "civil  damage  act,"  a  new  cause 
of  action  was  created,  and  both  direct  or  consequential  in- 
juries are  included  in  the  remedy  given.  ( Yolens  v.  Owen 
et  al.,  74  EL  Y.,  526.)  The  words  "  means  of  support,"  in 
connection  with  the  designation  of  the  persons  in  whose 
favor  the  remedy  is  given,  viz.,  husband,  wife,  child,  parent, 
etc.,  denote  that  it  was  not  alone  a  common-law  injury,  or 


EXCISE  AND  HOTEL  LAWS. 


125 


an  injury  before  remediable  by  action,  to  which  the  statute 
was  intended  to  apply.  (Id.) 

It  will  be  noticed  that  some  person  must  be  "injured  in 
person  or  property  or  means  of  support ' '  to  give  a  cause 
of  action,  and  it  is  not  necessary  that  the  person  injured  be 
the  husband,  wife,  child,  etc.,  of  the  person  doing  the  injury, 
but  if  the  injury  is  done  by  any  intoxicated  person,  or  in 
consequence  of  the  intoxication  of  any  person,  the  persons 
named  shall  have  the  right  of  action  for  the  same,  and  such 
action  may  be  not  only  against  the  person  selling,  who  is 
very  often  unable  to  respond  in  damages,  but  against  the 
owner  of  the  premises  renting  or  permitting  them  to  be 
used  for  the  sale  of  intoxicating  liquors,  or  against  them 
jointly;  and,  as  heretofore  shown,  the  term,  "intoxicating 
liquors,"  as  used  in  the  statute,  means  "strong  or  spiritu- 
ous liquors;"  therefore  the  act  applies  to  the  sale  of  all 
liquors  that  are  intoxicating,  and  must  include  ale,  wine 
and  beer,  as  they  are  held  to  be  intoxicating. 

This  is  a  just  and  equitable  statute,  and  the  persons  in- 
tended to  benefited,  are  those  most  liable  to  need  the  assist- 
ance for  which  it  provides. 

It  will  also  be  seen  by  reference  to  the  statute,  that  the 
unlawful  sale  or  giving  away  of  intoxicating  liquors,  works 
a  forfeiture  of  the  rights  of  the  tenant  or  lessee  under  his 
lease. 

SECTION  III. 

Jurisdiction  of  Justices  of  the  Peace. 

By  the  second  section  of  the  "civil  damage  act,"  any 
justice  of  the  peace  of  the  county  where  the  offense  is  com- 
mitted, has  jurisdiction  of  the  action,  where  the  claim  does 
not  exceed  8200,  and  by  associating  with  himself  two  other 
justices  of  the  county,  has  jurisdiction  to  the  amount  of 
8500,  as  the  damages  sustained  under  the  statute  would,  in 
a  great  majority  of  cases,  be  under  the  sum  of  8500,  this 
section  provides  for  an  expeditious  and  comparatively  inex- 
pensive trial,  in  case  the  party  bringing  the  action  should 
choose  to  bring  it  in  a  justice' s  court. 


126 


EXCISE  AND  HOTEL  LAWS. 


SECTION  IY. 
Constitutionality  of  the  Act. 

The  act  of  1873,  known  as  "  the  civil  damage  act,"  was 
constitutional  and  valid.  (BertTiolf  v.  O'Reiley,  74  X.  Y., 
509;  Met.  Board  of  Excise  v.  Berrie,  34  id.,  657;  Baker  v. 
Pope,  2  Hun,  556;  S.  C,  5  T.  &  C,  102;  Hayes  v.  Phelan, 
4  Hun,  733;  Dubois  v.  Miller,  5  id.,  332;  Jackson  v.  Brook- 
ins,  id.,  530;  Franklins.  Schermerltorn,  8  id.,  112;  SmitJi 
v.  Reynolds,  id.,  128;  3feadv.  Stratton,  id.,  148.) 

The  legislature  has  power  to  create  a  cause  of  action  for 
damages  in  favor  of  a  person  injured  in  person  or  property 
by  the  act  of  an  intoxicated  person  against  the  owner  of  real 
property,  whose  only  connection  with  the  injury  is  that  he 
leased  the  premises  where  the  liquor  causing  the  intoxica- 
tion was  sold  or  given  away,  with  knowledge  that  intoxicat- 
ing liquors  were  to  be  sold  thereon.  {Bertholf  y.  CP  Reiley, 
supra.)  The  court  in  the  opinion  say,  "  That  the  act  is 
doubtless  an  extreme  exercise  of  legislative  power  ;  but  we 
cannot  say  that  it  violates  any  express  or  implied  prohibi- 
tion of  the  constitution." 

The  liability  may  be  imposed  irrespective  of  the  question 
whether  the  sale  or  giving  away  of  the  liquor  was  lawful  or 
unlawful,  or  of  the  question  of  negligence  on  the  part  of  the 
landlord  or  tenant.  (Id.) 

It  may  be  well  to  go  further  upon  this  point,  and  quote 
from  the  opinion  (page  513),  "The  liability  of  the  landlord 
is  not  made  to  depend  upon  the  nature  of  the  act  of  the 
tenant,  but  exists  irrespective  of  the  fact  whether  the  sale  or 
giving  away  of  the  liquor  was  lawful  or  unlawful ;  that  is, 
whether  it  was  authorized  by  the  license  law  of  the  State,  or 
was  made  in  violation  of  that  law.  Xor  does  the  liability 
depend  upon  any  question  of  negligence  of  the  landlord  in 
the  selection  of  the  tenant,  or  of  the  tenant  in  selling  the 
liquor.  Although  the  person  to  whom  liquor  is  sold  is  at 
the  time  apparently  a  man  of  sober  habits  and,  so  far  as  the 
vendor  knows,  one  whose  appetite  for  strong  drink  is  habitu- 
ally controlled  by  his  reason  and  judgment,  yet  if  it  turns 
out  that  the  liquor  sold  causes  or  contributes  to  the  intoxi- 
cation of  the  person  to  whom  the  sale  or  gift  is  made,  under 


EXCISE  AND  HOTEL  LAWS.  V21 

the  influence  of  which  he  commits  an  injury  to  person  or 
property,  the  seller  and  his  landlord  are  by  the  act  made 
jointly  and  severally  responsible.  The  element  of  care  or 
diligence  on  the  part  of  the  seller  or  landlord  does  not  enter 
into  the  question  of  liability." 

SECTION  Y. 
When  Caese  of  Action  will  not  Exist  Undek. 

There  are  cases  where  the  action  will  not  lie,  which  would 
seem  at  first  look  to  come  fairly  within  the  statute.  In  the 
case  of  March  v.  Mabbitt  (3  Week.  Dig,,  126),  there  was  no 
evidence  on  the  trial  of  any  specific  act  done,  or  omitted  by 
the  husband,  while  in  a  state  of  intoxication  which  in  any 
manner  injured  the  plaintiff  in  person  or  estate,  or  deprived 
her  of  any  means  of  support,  and  she  failed  to  recover. 

In  one  case  the  complaint  alleged  that  the  death  of  plain- 
tiff s  husband  was  caused  by  intoxication,  caused  by  liquors 
sold  to  him  by  defendant,  and  that  by  his  death  plaintiff  had 
sustained  damages  in  being  deprived  of  the  companionship 
of  her  husband,  and  of  the  customary  support  and  mainten- 
ance of  herself  and  children.  And  it  was  held  that  the  com- 
plaint did  not  state  a  cause  of  action  under  the  statute. 
{Hayes  v.  Plielan,  4  Hun,  733.)  And  among  the  reasons 
given  by  the  learned  judge  writing  the  opinion  were,  that 
no  injury  by  an  intoxicated  person  is  alleged,  that  depriva- 
tion of  companionship  is  not  by  the  statute  a  ground  of  ac- 
tion, no  previous  loss  of  means  of  support  is  alleged,  and  says, 
in  substance,  that  a  right  of  action  exists  against  the  vendor 
or  giver  of  the  liquor  only  in  cases  where  it  lies  against  the 
intoxicated  person.  Judge  James  wrote  a  dissenting  opinion 
in  this  case  (5  Hun,  530),  in  which  he  arrives  at  a  different 
result,  as  did  the  court  in  Qua  hi  v.  Russell  (S  Hun,  319); 
and  see  Head  v.  Stratton  (87  N.  Y.,  498).  In  the  last  two 
cases,  it  was  held  that  it  was  not  essential  to  the  cause  of 
action ;  that  a  cause  of  action  should  also  be  maintainable 
against  the  intoxicated  person  ;  that  it  was  sufficient  if  the 
wife  had  been  injured  in  her  means  of  support  through  the 
intoxication  of  her  husband. 

In  another  case  the  complaint  alleged  that  the  defendant 


128  EXCISE  AND  HOTEL  LAWS. 

sold  intoxicating  liquors  to  plaintiff's  husband,  intoxicating 
him,  and  rendering  him  incapable  of  labor  and  of  supporting 
the  plaintiff,  and  so  injuring  him  as  to  cause  his  death,  and 
that,  by  reason  of  his  death,  plaintiff  had  been  injured  in 
property  and  means  of  support  to  the  amount  of  85,000,  and 
it  was  held  not  to  state  a  cause  of  action  under  the  "civil 
damage  act."    (Brookmire  v.  Monaglian,  15  Hun,  16.) 

The  primary  jmrpose  of  the  legislature,  in  giving  a  right 
of  action  for  an  injury  of  this  character,  was  the  protection 
of  the  dependant  and  helpless.  Diminution  of  income,  or 
loss  of  property,  does  not  constitute  an  injury  to  means  of 
support,  within  the  fair  intendment  of  the  statute,  if  the 
plaintiff,  notwithstanding,  has  adequate  means  of  mainten- 
ance from  accumulated  capital  or  property,  or  his  remaining 
income  is  sufficient  for  his  support.  ( Volans  v.  Owen  et  al., 
74  K  Y.,  530.) 

The  above  action  was  brought  for  loss  of  services  of  plain- 
tiff' s  minor  son  and  for  medical  and  other  expenses,  and  it 
was  held  that  the  plaintiff  was  not  entitled  to  recover,  in  the 
absence  of  proof  that  said  services  were  necessary  to  his  sup- 
port, or  that  the  charge  brought  upon  him  diminished  his 
means  so  as  to  render  them  inadequate  therefor.  (Reversing 
same  case,  9  Hun,  558.) 

SECTION  VI. 

Joint  Action  Against  Separate  Vendors  will  not  Lie. 

A  joint  action  will  not  lie  against  two  or  more  persons 
who,  separately,  at  different  times  and  at  different  places, 
have  sold  liquor  to  the  same  person,  each  quantity  of  liquor 
sold  having  contributed  to  produce  the  intoxication  that 
caused  the  injury.   {Jackson  v.  Brookins  et  al.,  5  Hun,  530.) 

The  above  action  was  brought  jointly  against  two  separate 
vendors  of  liquor,  and  the  landlord  of  one  of  them,  charging 
that  each  sold  liquor  to  plaintiff's  husband,  and  to  other 
parties  on  the  same  day,  but  at  different  places,  the  liquor 
sold  by  each  contributing  to  produce  the  intoxication  of  the 
parties,  who  afterward  engaged  in  an  affray  and  plaintiff '  s 
husband  was  killed.  The  defendants  each  demurred,  one 
ground  of  demurrer  being  that  the  defendants  could  not  be 


EXCISE  AND  HOTEL  LAWS. 


129 


sued  jointly.  The  demurrer  was  sustained  upon  this  point, 
the  court  holding  that  a  cause  of  action  was  stated  against 
the  one  vendor,  and  another  stated  against  the  other  vendor 
and  his  landlord  jointly  ;  but  that  a  joint  action  would  not 
lie  against  the  three  persons.  And  further,  "  That  whether 
more  than  one  action  will  lie  in  favor  of  plaintiff,  we  are  not 
called  upon  to  decide."  It  is  to  be  regretted  that  the  court 
did  not  give  an  opinion  upon  tins  point,  as  many,  if  not  a 
majority,  of  the  cases  that  might  arise  under  the  statute  are 
similar  to  this  one,  the  persons  becoming  intoxicated  by 
liquor  procured  at  several  places.  Certainly,  by  the  terms 
of  the  act,  each  of  the  parties  are  liable  for  the  damages  sus- 
tained, having  sold  or  given  away  the  liquor  that  produced 
the  intoxication  "in  whole  or  in  part,"  and  under  the  last 
case  cited  the  whole  damages  could  be  recovered  of  any  one 
vendor,  but  could  they  each  be  made  to  respond  ?  It  would 
seem  that  the  injury  having  been  fully  satisfied  by  the  re- 
covery of  the  damages  against  one  of  the  vendors,  another 
action  brought  against  another  vendor  would  be  barred. 

In  the  case  of  Morenus  v.  Craioford  (15  Hun,  45),  the 
liquor  producing  intoxication  was  sold  by  two  persons  at 
different  places  ;  the  action  was  joint  against  them,  and  the 
complaint  charged  a  conspiracy  between  the  vendors.  It 
was  held  that  two  separate  sales  by  the  defendants  sever- 
ally, did  not  uphold  the  allegation  of  a  joint  sale  by  de- 
fendants, and  the  allegation  of  a  conspiracy  was  treated  as 
surplusage,  but  the  question  as  to  whether  a  separate  action 
and  recovery  would  lie  against  each  was  left  undecided. 
These  words,  however,  were  used  in  the  prevaling  opinion, 
"possibly  the  plaintiff  might  have  been  allowed  to  elect, 
and  to  recover  against  one  or  the  other  of  the  defendants, 
but  we  need  not  decide  that." 

SECTION  VII. 

Where  Several  are  Injured,  They  can  Only  Recover 
Proportionately. 

The  statute  gives  the  right  of  action  to  several  'persons. 
In  case  of  the  death  of  the  husband  and  father,  the  wife  is 

not  the  only  party  injured,  but  the  children  are  also  injured 

9 


130  EXCISE  AND  HOTEL  LAWS. 


in  their  "means  of  support,"  where  they  are  dependant 
upon  the  father ;  and  the  same  questions  would  arise  as  in 
the  case  of  several  parties  selling  the  liquor  producing  in- 
toxication. In  case  the  wife  elects  to  sue  for  the  damages 
and  recovers,  is  an  action  by  the  children  barred,  or  can 
each  maintain  an  action  for  the  damages  sustained  by  each, 
or  must  they  all  join  in  one  action  for  the  whole  damages  % 
In  the  case  of  Franklin  v.  Scliermerhorn  et  al.  (3  IS".  Y. 
Week.  Dig.,  390;  S.  C,  8  Hun,  112),  it  was  held  that  where 
several  persons  are  dependant  for  support  upon  the  person 
to  whom  the  liquor  was  sold,  by  means  of  which  the  injury 
was  sustained,  in  an  action  by  one  of  such  persons  against 
the  person  who  sold  the  liquor,  the  plaintiff's  proportionate 
share  only  could  be  recovered. 

In  the  last  case  the  intoxicated  person  had  a  wife  and  four 
children  dependant  upon  him  ;  the  wife  brought  an  action 
recovering  $175.  It  was  held,  Justice  E.  D.  Smith  writing 
the  opinion,  that  as  the  act  gives  a  right  of  action  to  hus- 
band, wife,  child,  etc.,  or  other  person  who  shall  be  injured, 
that  the  wife  was  entitled  to  her  proportionate  share  only, 
or  one-fifth  of  the  loss.  It  also  declares  the  act  vague 
and  inexplicit,  and  that  while  the  legislature  doubtless  in- 
tended to  give  a  single  right  of  action,  and  single  damages 
to  one  person,  a  right  of  action  is  given,  or  might  arise,  to  a 
husband  or  wife  and  each  of  their  children,  be  they  ever  so 
many,  as  well  as  to  the  other  persons  named  in  said  section. 

If  the  decision  in  this  case  is  correct,  it  would  be  neces- 
sary for  each  to  bring  a  separate  action,  thereby  making,  as 
it  would  seem,  much  unnecessary  litigation,  or  a  joint  ac- 
tion be  brought  by  all ;  but  the  right  to  maintain  a  joint 
action  in  such  case  would  be  somewhat  doubtful,  as  each  is 
given  a  cause  of  action,  and  there  is  not  that  community 
of  interest  which  would  allow  them  all  to  unite  in  one  ac- 
tion. A  guardian  might  be  appointed  for  the  children,  and 
their  interest  assigned  to  the  mother,  when  damages  could 
all  be  recovered  in  one  action,  but  this  course  would  call 
for  delay  in  getting  the  appointment  of  a  guardian,  as  well 
as  trouble  and  expense,  which,  in  many  instances,  where 
the  injury  is  slight,  would  deter  the  parties  from  pro- 
ceeding with  the  matter. 


EXCISE  AND  HOTEL  LAWS. 


131 


SECTION  VIII. 

nYhen  Cause  of  Action  Exists  Under  for  Loss  of 
Means  of  Support. 

Where  the  death  of  a  man  is  a  result  necessarily  follow- 
ing, and  attributable  to  his  intoxication,  an  action  is  main- 
tainable by  his  widow,  if  injured  in  her  "means  of  support,*' 
against  the  vendor  of  the  liquor  causing  the  intoxication, 
and  the  owner  of  the  building  where  the  liquor  was  sold, 
in  the  cases  specified  in  the  civil  damage  act.  {Mead  v. 
Stratton,  87  N.  Y.,  493;  Hill  v.  Berry,  75  id.,  229;  Qua  in 
v.  Russell,  8  Hun,  319;  Jackson  v.  Brookins,  5  id.,  530; 
Davis  v.  Standisli,  26  id.,  008  ) 

It  will  be  observed  from  a  reading  of  the  cases,  as  well  as  the 
statute,  that  the  person  seeking  to  recover  must  be  injured 
in  "means  of  support,  etc."  No  matter  how  great  the  in- 
jury may  be  in  other  respects,  or  how  much  suffering  may 
be  entailed  by  reason  of  the  intoxication,  if  the  person  is 
not  injured  in  person  or  property  or  means  of  support  no 
action  will  lie.  Death  of  the  husband  alone  does  not  give 
a  cause  of  action.    (Brookmire  v.  Monaglian,  15  Hun,  16.) 

In  the  case  of  Mead  v.  St  rattan  (supra),  the  court  say,  "If 
the  injury  which  had  resulted  to  the  deceased  in  consequence 
of  his  intoxication  had  disabled  him  for  life,  or  to  such  an 
extent  as  to  incapacitate  him  for  labor  and  for  earning  a 
support  for  his  family,  it  would  no  doubt  be  embraced 
within  the  meaning  and  intent  of  the  statute.  That  death 
ensued  in  consequence  thereof,  furnishes  much  stronger 
ground  for  a  claim  for  a  loss  of  means  of  support."  In  the 
case  of  Davis  v.  Stand  isft,  it  was  held  that  the  jury  in  esti- 
mating the  damages  might  consider  the  expectancy  of  the 
plaintiff  and  her  deceased  husband,  based  upon  the  North- 
ampton tables.  And,  also,  that  if  the  liquor  was  the  proxi- 
mate cause  of  death  it  justified  a  verdict  for  the  plaintiff. 

The  case  of  a  husband,  having  a  wife  and  family  dependent 
upon  him  for  support,  who  by  reason  of  intoxication  becomes 
incapacitated  to  labor  and  neglects  to  provide  for  those  so 
dependent,  or  squanders  his  substance,  reducing  them  to 
penury  and  want,  is  within  the  act.  ( Volans  v.  Owen  et  al.y 
74  N.  Y.,  527.) 


132 


EXCISE  AND  HOTEL  LAWS. 


SECTION  IX. 
Injury  to  Person  or  Property. 

Injuries  arising  to  the  person  or  property  from  or  by  rea- 
son of  the  intoxication  of  another  come  within  the  statute. 

Where  a  wife  is  thrown  out  of  a  wagon  and  seriously  in- 
jured, through  the  recklessness  of  a  drunken  driver,  the 
husband  is  entitled  to  recover  damages  for  the  loss  of  her 
services,  and  for  medical  attendance  on  her,  from  the  liquor 
dealers  who  sold  the  driver  the  liquor  whereby  he  became 
intoxicated.  (Aldrich  v.  JSager,  4  Week.  Dig.,  Ill;  S.  C, 
9  Hun,  537.)  Here  the  injury  was  produced  by  the  driver, 
a  third  person,  and  the  husband  of  the  person  injured  re- 
covers of  the  person  selling  the  liquor  to  the  driver. 

P.  was  the  owner  and  F.  the  keeper  of  a  place  where  in- 
toxicating liquors  were  sold  without  a  license.  The  son  of 
the  plain  tiff  on  a  Sunday  took  plaintiff' s  horse,  saying  he 
was  going  to  see  a  friend  about  four  miles  distant,  but  instead 
went  directly  to  the  place  of  F.  and  became  intoxicated  there, 
and  when  in  such  state  drove  the  horse  so  violently  that  he 
died ;  and  it  was  held  that  an  action  could  be  maintained 
against  R.  and  F.  jointly.  (Bertliolf  v.  O'Reilly,  8  Hun,  16.) 
And  that  the  father  knowing  his  son  to  be  of  intemperate 
habits,  was  not  guilty  of  contributory  negligence  in  allowing 
him  to  drive  the  horse ;  and  that  the  sending  of  the  horse 
on  Sunday  did  not  deprive  the  plaintiff  of  the  right  to  sue 
for  his  property  unlawfully  destroyed.  (Id.) 

A  wife  may  recover  damages  for  injuries  and  pain  endured, 
against  a  licensed  liquor  dealer  selling  liquor  to  her  husband, 
causing  his  intoxication,  by  reason  of  which  he  upsets  a 
wagon,  throwing  her  to  the  ground.  (Belyea  v.  JVorris,  5 
Week.  Dig.,  343;  affirmed,  77  N.  Y.,  629.) 

SECTION  X. 
Liability  of  Owner  of  the  Premises. 
The  object  of  the  law  was  to  prevent  the  impoverishment 
of  families  by  reason  of  intoxication;  to  prevent  the  violence 
and  injury  resulting  from  intoxication  by  making  those  who 
caused  the  intoxication  liable  for  the  damages  which  resulted 
to  others  by  reason  thereof.    The  tenant  may  sell,  but  he 


EXCISE  AND  HOTEL  LAWS.  133 

must  be  careful  to  whom  he  sells,  and  never  to  sell  enough 
to  cause  intoxication,  or  to  add  to  an  intoxication  which 
had  been  commenced  by  sales  of  strong  drink  by  others. 
The  landlord  must  see  that  he  rents  his  premises,  if  he  rents 
them  for  the  purpose  of  selling  intoxicating  drinks,  to  per- 
sons who  will  so  sell  that  no  person  will  be  injured  in  person, 
property  or  means  of  support  by  reason  of  his  sales.  The 
legislature  required  the  owner,  who  alone  has  the  power  to 
lease  and  select  his  tenant,  to  assume  the  risk  of  his  tenant's 
acts  in  the  business  of  selling  spirituous  liquors  when  such 
tenant  caused  injury  by  his  sales.  If  the  legislature  can 
legislate  against  the  tenant,  its  power  to  reach  the  landlord 
cannot  be  doubted  in  the  cases  mentioned  in  the  act  referred 
to.    {Bertholfv.  O'Reilly,  8  Hun,  16;  S.  C,  74  N.  Y.,  50&.) 

The  liability  of  the  owner  may  be  imposed  irrespective  of 
the  question  whether  the  sale  or  giving  away  of  the  liquor 
was  lawful  or  unlawful,  or  of  the  question  of  negligence  on 
the  part  of  the  landlord  or  tenant,  and  such  a  legislative  en- 
actment is  not  violative  of  the  constitutional  provision  pro- 
hibiting the  taking  of  private  property  without  "  due  process 
of  law."  (74  N.  Y.,  supra ;  Met.  Board  of  Excise  v.  Bar- 
rie,  34  N.  Y.,  657.) 

In  the  case  oiMeadv.  Stratton  etal.(87N.  Y.,  493),  the  wife 
of  the  vendor  of  the  liquors  was  the  owner  of  the  premises 
and  had  taken  title  and  possession  before  the  passage  of  the 
act.  She  had  general  charge  of  the  house,  except  of  the  bar, 
and  knew  that  intoxicating  liquors  were  there  sold,  and  it 
was  held  that  the  fact  that  possession  was  taken  before  the 
act  was  passed  did  not  exempt  her  from  liability ;  that  the 
presumption  was  that  the  possession  originally  taken  was 
continued  in  view  of  the  laws  of  the  State  thereafter  enacted; 
and  that  the  question  whether  she  had  given  permission  for 
the  occupation  of  the  building  with  knowledge  that  liquors 
were  to  be  sold,  was  properly  submitted  to  the  jury,  and  that 
having  such  knowledge  she  was  liable  under  the  act. 

A  joint  action  may  be  maintained  against  a  landlord  and 
his  tenant.  (Jackson  v.  Brookins,  5  Hun,  530;  Bertholf  v. 
<J  Re  illy,  74  N.  Y.,  509.)  But  will  not  lie,  however,  against 
two  or  more  persons  who,  separately,  at  different  times  and 
at  different  places,  have  sold  liquor  to  the  same  person,  each 


134 


EXCISE  AND  HOTEL  LAWS. 


quantity  of  liquor  sold  having  contributed  to  produce  the 
intoxication  that  caused  the  injury.  (Jackson  v.  Broolcins, 
supra.) 

SECTION  XL 

License  to  Sell,  no  Defense. 

The  liability  imposed  by  the  statute  falls  upon  every  per- 
son who  has  sold  the  liquor  producing  the  intoxication — 
upon  those  who  take  out  a  license,  as  well  as  upon  those 
who  sell  without  a  license.  (Baker  v.  Pope,  2  Hun,  550.) 
The  act  is  not  inconsistent,  nor  in  conflict  with  the  law  allow- 
ing the  vendor  to  receive  a  license.  It  does  not  forbid  the 
sale,  but  attaches  a  liability,  by  reason  of  certain  conse- 
quences of  the  sale.  It  imposes  upon  the  seller  the  duty 
of  guarding  his  conduct,  so  as  to  produce  no  mischievous 
results.  (Id.)  The  license  to  the  defendant  from  the  board 
of  excise  of  the  town,  giving  him  permission  to  sell  intoxi- 
cating liquors,  did  not  bar  the  plaintiffs  action.*  (Quain  v. 
v.  Russell,  12  Hun,  376.) 

The  statute,  in  giving  a  right  of  action,  makes  no  dis- 
tinction between  the  licensed  and  unlawful  sale  of  liquor. 
(Davis  v.  StandisJi,  26  Hun,  615;  Dubois  v.  Miller,  5  id., 
334.) 

SECTION  XII. 
Innocence  and  Good  Faith  no  Defense. 
The  man  who  sells  liquor  to  another,  whether  lawfully  or 
unlawfully,  is  not  protected  against  the  provisions  of  the 
statute,  because  he  does  not,  at  the  time  he  sells  the  liquor, 
contemplate  that  it  will  lead  the  man  into  circumstances 
where  he  is  liable  to  lose  his  life  (Da.vis  v.  Standish,  26 
Hun,  612.) 

The  supplying  to  a  party  who  is  injured  afterwards  by 
reason  thereof,  although  done  by  the  bartender  without  the 
knowledge  or  authority  of  his  empl overs,  and  against  their 
instructions,  makes  the  employers  liable  for  the  injuries 
sustained.  (Smith  v.  Reynolds  et  al.,  8  Hun,  128.)  The 
settled  principle  applies,  that  the  principal  is  liable  to  third 
persons  for  the  misfeasance,  negligence  and  omissions  of  the 
agent  in  the  business  of  his  agency.    (Id.,  130.) 


EXCISE  AND  HOTEL  LAWS. 


135 


SECTION  XIII. 
Exemplary  Damages. 

The  jury,  in  this  class  of  cases,  have  the  right  to  give  ex- 
emplary damages,  yet  they  should  only  be  given  where  there 
are  circumstances  of  abuse  or  aggravation  proved  on  the 
part  of  the  vendor  of  the  liquor.  (Franklin  v.  Scliermer- 
Jiorn,  8  Hun,  112.)  They  clearly  should  not  be  alloAved,  in 
ordinary  cases,  where  nothing  is  proved  but  the  simple  sale 
of  a  single  glass  of  liquor  under  ordinary  circumstances. 
(Id.,  115.)  In  the  case  of  Davis  v.  StandisJi  (20  Hun,  615), 
the  trial  court  charged,  that  the  fact  that  the  defendant  was 
selling  liquor  without  a  license  might  be  considered  as  a 
basis  for  exemplary  damages,  and  it  was  held  to  be  no  error, 
and  that  the  circumstance  that  the  defendant,  in  selling  the 
liquor  that  produced  the  intoxication  and  the  resultant  in- 
jury, was  acting  in  open  defiance  of  law,  might  be  consid- 
ered as  a  basis  for  exemplary  damages. 

In  Dubois  v.  Miller  (5  Hun,  332),  the  question  arose,  as 
to  whether  exemplary  damages  should  be  given  in  a  case 
where  the  seller  of  the  liquor  knew  the  purchaser  to  be  a 
drunkard,  but  was  not  decided.  But  it  seems  clear  that,  if 
exemplary  damages  may  be  allowed  for  selling  without 
a  license  for  the  reason  that  it  is  an  act  of  "open  defiance 
of  law,"  that  such  damages  should  be  given  in  the  case  of 
selling  to  a  known  drunkard,  as  that  is  an  act  in  defiance 
of  the  law,  and  especially  would  this  be  so  in  a  case  where 
the  seller  had  been  notified  not  to  sell  to  the  drunkard. 
(See  Hoard  v.  Peck,  56  Barb.,  202.) 

SECTION  XIY. 
Mitigation  of  Damages. 
The  license  from  the  board  of  excise  of  the  town,  giving 
permission  to  sell  intoxicating  liquors  does  not  bar  an  ac- 
tion. The  only  eifect  of  the  license  is  to  mitigate  damages, 
and  is  admissible  as  evidence  for  that  purpose.  (Quain  v. 
Russell,  12  Hun,  377.)  It  is  hard  to  see  how  the  fact  of  the 
defendant's  having  a  license  can  result  in  a  mitigation  of 
damages.  The  statute  is  plain  and  distinct,  and  the  de- 
cisions unanimous  upon  the  point,  that  it  makes  no  differ- 


136 


EXCISE  AND  HOTEL  LAWS. 


ence  whether  a  man  is  licensed  or  not,  an  action  can  be 
maintained  for  the  damages.  The  statute  gives  exemplary 
damages ;  and  we  have  seen,  ante,  that  selling  without  a 
license  is  a  cause  for  allowing  exemplary  damages,  but  how 
can  a  license  under  the  statute  be  a  cause  for  a  mitigation 
of  damages. 


EXCISE  AND  HOTEL  LAWS. 


137 


CHAPTER  V. 


INNKEEPERS. 

SECTION  I. 

Statutes  Relating  to  the  Rights,  Duties  and  Lia- 
bilities, AS  WELL  AS  FOE  THE  PROTECTION  OF  HOTEL- 

Keepers. 

1.  Whenever  the  proprietor  or  proprietors  of  any  hotel 
or  inn  shall  provide  a  safe  in  the  office  of  snch  hotel,  or 
other  convenient  place,  for  the  safe  keeping  of  any  money,, 
jewels  or  ornaments  belonging  to  the  guests  of  such  hotel 
or  inn,  and  shall  notify  the  guests  thereof  by  posting  a 
notice  (stating  the  fact  that  such  safe  is  provided,  in  which 
such  money,  jewels  or  ornaments  may  be  deposited)  in  a 
public  and  conspicuous  place  and  manner  in  the  office  and 
public  room,  and  in  the  public  parlors  of  such  hotel ;  and, 
if  such  guest  shall  neglect  to  deliver  such  money,  jewels  or 
ornaments  to  the  person  apparently  in  charge  of  snch  office 
for  deposit  in  such  safe,  the  proprietor  or  proprietors  of 
such  hotel  shall  not  be  liable  for  any  loss  of  such  money, 
jewels  or  ornaments  sustained  by  such  guest  by  theft  or 
otherwise.  (Section  1,  chapter  421,  1855,  as  amended  by 
section  1,  chapter  227  of  the  Laws  of  1883.) 

2.  No  hotel  keeper  shall  be  liable  to  any  guest  for  the 
loss  of  wearing  aprparel,  goods  or  merchandise  for  any 
sum  exceeding  the  sum  of  $500,  where  it  shall  appear  that 
such  loss  occurred  without  the  fault  or  negligence  of  such 
hotel  keeper  ;  nor  shall  he  be  liable  in  any  sum  for  the  loss 
of  any  article  or  articles  or  wearing  apparel,  cane,  umbrella, 
satchel,  valise,  box,  bag,  bundle  or  other  chattel  belonging 


138 


EXCISE  AND  HOTEL  LAWS. 


to  such  guest,  and  not  within  a  room  assigned  to  him,  un- 
less the  same  shall  be  specially  intrusted  to  the  care  and 
custody  of  such  hotel  keeper  or  his  servants.  (Section  2, 
chapter  421,  1855,  as  amended  by  section  2,  chapter  227  of 
the  Laws  of  1883.) 

3.  No  innkeeper  shall  be  liable  for  the  loss  or  destruc- 
tion by  fire  of  property  received  by  him  from  a  guest, 
stored  or  being  with  the  knowledge  of  such  guest  in  a  barn 
or  other  out-building,  where  it  shall  appear  that  such  loss 
or  destruction  was  the  work  of  an  incendiary,  and  occurred 
without  the  fault  or  negligence  of  such  innkeeper.  (Sec- 
tion 1,  chapter  658,  I860.) 

4.  No  animal  belonging  to  a  guest  and  destroyed  by  fire 
while  on  the  premises  of  any  innkeeper,  shall  be  deemed 
of  greater  value  than  $300,  unless  an  agreement  shall  be 
proved  between  such  guest  and  innkeeper  that  a  higher  esti- 
mate shall  be  made  of  the  same.    (Section  2,  id.) 

5.  Every  person  who  shall,  at  any  hotel  or  inn,  order  and 
receive,  or  cause  to  be  furnished,  any  food  or  accommo- 
dation, with  intent  to  defraud  the  owner  or  proprietor  of 
such  hotel  or  inn  out  of  the  value  or  price  of  such  food  or 
accommodation  ;  and  every  person  who  shall  obtain  credit 
at  any  hotel  or  inn  by  the  use  of  any  false  pretense  or  de- 
vice, or  by  depositing  at  such  hotel  or  inn  any  baggage  or 
property  of  value  less  than  the  amount  of  such  credit, 
or  of  the  bill  by  such  person  incurred  ;  and  any  person 
who,  after  obtaining  credit  or  accommodation  at  any  hotel 
or  inn,  shall  abscond  from  such  hotel  or  inn,  and  shall  sur- 
reptitiously remove  his  baggage  or  property  therefrom  shall, 
upon  conviction,  be  adjudged  guilty  of  a  misdemeanor. 
(Section  1,  chapter  677,  1867.) 

6.  Every  keeper  of  a  hotel  or  inn  shall  post  in  a  public 
and  conspicuous  place  and  manner  in  the  office  or  public 
room,  and  in  the  public  parlors  of  such  hotel  or  inn,  a 
printed  copy  of  this  act  and  a  statement  of  the  charges  or 
rate  of  charges  by  the  day  and  for  meals  furnished  and  for 
lodging.  No  charge  or  sum  shall  be  collected  or  received 
by  any  such  hotel  keeper  or  innkeeper  for  any  service  not 
actually  rendered,  or  for  a  longer  time  than  the  person  so 
charged  actually  remained  at  such  hotel  or  inn  ;  nor  for 


EXCISE  AND  HOTEL  LAWS. 


139 


a  higher  rate  of  charge  for  the  use  of  such  room  or  board, 
lodging  or  meals  than  is  specified  in  the  rate  of  charges  re- 
quired to  be  posted  by  the  last  preceding  sentence  ;  pro- 
vided such  guest  shall  have  given  such  hotel  keeper  or 
innkeeper  notice  at  the  office  of  his  departure.  For  any 
violation  of  this  section,  or  any  provisions  herein  con- 
tained, the  offender  shall  forfeit  to  the  injured  party  three 
times  the  amount  so  charged,  and  shall  not  be  entitled  to  re- 
ceive any  money  for  meals,  services  or  time  charged.  (Sec- 
tion 2,  chapter  677,  1867,  as  amended  by  section  2,  chapter 
S02,  1871,  as  amended  by  section  3,  chapter  227  of  the  Laws 
of  1883.) 

The  act  required  by  the  last  subdivision  to  be  posted,  con- 
sists of  subdivisions  5  and  6.  The  act  as  originally  passed  re- 
quired restaurant,  boarding-house,  and  hotel  keepers,  to  post 
the  act,  and  also  to  post  the  same  in  every  bed-room  of  the 
house.  The  act  as  amended  applies  only  to  hotels,  and  only 
requires  posting  in  the  office  and  public  parlors,  and  also 
makes  it  necessary  for  the  guest  to  give  notice  of  his  depar- 
ture in  order  to  have  the  benefit  of  the  act. 

7.  Any  hotel  keeper,  innkeeper,  boarding-house  or  lodg- 
ing-house keeper,  who  shall  have  a  lien  for  fare,  accommo- 
dation, or  board  upon  any  goods,  baggage  or  other  chat- 
tel property,  and  in  his  possession  for  a  period  of  three 
months  at  least  after  the  departure  of  the  guest  or  boarder 
leaving  the  same,  or  who,  for  a  period  of  six  months,  shall 
have  in  custody  any  unclaimed  trunk,  box,  valise,  package, 
parcel,  or  other  chattel  property  whatever,  may  proceed  to 
sell  the  same  at  public  auction,  and  out  of  the'  proceeds  of 
such  sale  may,  in  case  of  lien,  retain  the  amount  thereof 
and  the  expense  of  advertisement  and  sale ;  and,  in  case  of 
unclaimed  property,  the  expense  of  storage,  advertisement 
and  sale  thereof  ;  provided,  in  all  instances,  the  notice  speci- 
fied in  the  next  section  be  first  given  as  therein  directed. 
(Section  1,  chapter  530,  j879.) 

8.  Fifteen  days  at  least  prior  to  the  time  of  the  sale  a 
notice  of  the  time  and  place  of  holding  the  sale,  and  con- 
taining a  brief  description  of  the  goods,  baggage  and  articles 
to  be  sold,  shall  be  published  in  a  newspaper  of  general 
circulation,  published  in  the  city  or  town  in  which  such 


140 


EXCISE  AND  HOTEL  LAWS. 


hotel,  inn  or  boarding-house  is  situated  ;  but  if  there  be 
none  then  in  such  newspaper  published  nearest  said  city 
or  town;  and  shall  also  be  served  upon  said  guest,  boarder  or 
owner  of  such  chattel  articles  and  property,  if  he  reside  or 
can  be  found  within  the  county  where  said  hotel,  inn,  board- 
ing-house or  lodging-house  is  situated,  by  delivering  the 
same  to  him  personally,  or  leaving  it  at  his  place  of  resi- 
dence with  a  person  of  suitable  age  in  charge  thereof.  But 
if  such  guest,  boarder  or  owner  does  not  reside  or  cannot  be 
found  in  said  county  then  said  notice  shall  be  deposited  in 
the  post-office  of  said  city  or  town,  with  the  postage  prepaid 
thereon,  fifteen  days  prior  to  said  sale,  and  addressed  to  said 
guest,  boarder  or  owner  at  his  place  of  residence,  if  he  left 
his  address,  or  it  be  otherwise  known  to  said  hotel,  inn, 
boarding-house  keeper  or  lodging-house  keeper.  The  sale 
shall  take  place  between  the  hours  of  ten  o'clock  in  the  fore- 
noon and  four  o'clock  in  the  afternoon,  and  all  articles  sold 
shall  be  to  the  highest  bidder  for  cash.    (Section  2,  id.) 

9.  Such  hotel  keeper,  innkeeper,  boarding-house  keeper 
or  lodging-house  keeper  shall  make  an  entry  of  the  articles 
sold,  and  the  balance  of  the  proceeds  of  the  sale,  if  any, 
and  within  ten  days  from  such  sale  shall,  upon  demand, 
refund  such  balance  and  surplus  to  such  guest,  boarder  or 
person  leaving  the  articles  sold.    (Section  3,  id.) 

10.  In  case  such  balance  shall  not  be  demanded  and  paid 
as  specified  in  the  last  section,  within  said  ten  days,  then 
within  five  days  thereafter  said  hotel  keeper,  innkeeper, 
boarding-house  keeper  or  lodging-house  keeper  shall  pay 
said  balance  to  the  treasurer  of  the  county,  or  chamberlain 
of  said  city,  as  the  case  may  be,  and  shall  at  the  same  time 
file  with  said  treasurer  or  chamberlain  an  affidavit  made  by 
him,  in  which  shall  be  stated  the  name  and  place  of  resi-. 
dence,  so  far  as  they  are  known  to  him,  of  the  guest,  boarder 
or  person  whose  goods,  baggage  or  chattel  articles  were  sold, 
the  articles  sold,  and  the  price  at  which  they  were  sold,  the 
name  and  residence  of  the  auctioneer  making  the  sale  and  a 
copy  of  the  notice  published,  and  how  served,  whether  by 
personal  service  or  by  mailing,  and  if  not  so  served  the 
reason  thereof.    (Section  4,  id.) 

11.  Said  treasurer  or  chamberlain  shall  keep  said  sur- 


EXCISE  AND  HOTEL  LAWS. 


141 


plus  moneys  for  and  credit  the  same  to  the  persons  named 
in  said  affidavit  as  said  guest,  boarder  or  person  leaving 
the  articles  sold,  and  shall  pay  the  same  to  said  person,  his 
or  her  executors  or  administrators,  upon  demand  and  evi- 
dence satisfactory  to  said  treasurer  or  chamberlain  furnished 
of  their  identity.    (Section  5,  id.) 

12.  Nothing  herein  contained  shall  preclude  any  other 
remedy  now  existing  for  the  enforcement  of  hotel  keepers, 
innkeepers,  boarding-house  keepers  or  lodging-house  keep- 
ers1 lien,  nor  bar  their  right  to  recover  for  so  much  of  the 
debt  as  shall  not  be  paid  through  said  sale.    (Section  6,  id.) 

13.  A  person  who,  either  on  his  own  account  or  as  agent 
or  officer  of  a  corporation,  carries  on  business  as  inn-keeper, 
or  as  common  carrier  of  passengers,  and  refuses,  without 
just  cause  or  excuse,  to  receive  and  entertain  any  guest,  or 
to  receive  and  carry  any  passenger,  is  guilty  of  a  misde- 
meanor.   (Section  381,  Penal  Code.) 

14.  A  person  who  obtains  any  food  or  accommodation 
at  an  inn,  without  paying  therefor,  with  intent  to  defraud 
the  proprietor  or  manager  thereof,  or  who  obtains  credit 
at  an  inn  by  the  use  of  any  false  pretense,  or  who,  after 
obtaining  credit  or  accommodation  at  an  inn,  absconds  and 
surreptitiously  removes  his  baggage  therefrom,  without  pay- 
ing for  his  food  and  accommodation,  is  guilty  of  a  misde- 
meanor.   (Section  382,  Penal  Code.) 

The  last  section  was  undoubtedly  intended  to  supercede 
and  take  the  place  of  section  5,  ante. 

15.  No  citizen  of  this  State  can,  by  reason  of  race, 
color  or  previous  condition  of  servitude,  be  excluded  from 
the  equal  enjoyment  of  any  accommodation,  facility  or 
privilege  furnished  by  innkeepers  or  common  carriers,  or 
by  owners,  managers  or  lessees  of  theatres  or  other  places 
of  amusement,  by  teachers  and  officers  of  common  schools 
and  public  institutions  of  learning,  or  by  cemetery  associa- 
tions. The  violation  of  this  section  is  a  misdemeanor,  pun- 
ishable by  a  fine  of  not  less  than  fifty  dollars  nor  more  than 
$500.    (Section  383,  Penal  Code.) 

16.  All  manner  of  public  selling  or  offering  for  sale  of 
any  property  upon  Sunday  is  prohibited,  except  that  arti- 
cles of  food  may  be  sold  and  supplied  at  any  time  before 


142 


EXCISE  AND  HOTEL  LAWS. 


ten  o'clock  in  the  morning,  and  except,  also,  that  meals  may 
be  sold  to  be  eaten  on  the  premises  where  sold  or  served 
elsewhere  by  caterers  ;  and  prepared  tobacco  in  places  other 
than  where  spirituous  or  malt  liquors  or  wines  are  kept  or 
offered  for  sale,  and  fruit,  confectionery,  newspapers,  drugs, 
medicines  and  surgical  appliances  may  be  sold  in  a  quiet 
and  orderly  manner  at  any  time  of  the  day.  (Section  267, 
Penal  Code.) 

17.  Sabbath  breaking  is  a  misdemennor,  punishable  by  a 
fine  not  less  than  one  dollar  and  not  more  than  ten  dollars, 
or  by  imprisonment  in  a  county  jail  not  exceeding  five  days, , 
or  by  both.    (Section  269,  Penal  Code.) 

18.  In  addition  to  the  penalty  imposed  by  the  last  sec- 
tion, all  property  and  commodities  exposed  for  sale  on  the 
first  day  of  the  week,  in  violation  of  the  provisions  of  this 
chapter,  shall  be  forfeited.  LTpon  conviction  of  the  offender 
by  a  justice  of  the  peace  of  a  county,  or  by  any  police  jus-- 
tice  or  magistrate,  or  by  a  mayor,  recorder  or  alderman  of 
a  city,  such  officer  shall  issue  a  warrant  for  the  seizure  of 
the  forfeited  articles,  which,  when  seized,  shall  be  sold  on  one 
day's  notice,  and  the  proceeds  paid  to  the  overseer  of  the 
poor  for  the  use  of  the  town  or  city.  (Section  370,  Penal 
Code.) 

19.  By  chapter  143  of  the  Laws  of  1874,  any  five  or  more 
persons  who  may  desire,  may  form  a  company  for  building 
or  keeping  hotels,  and  by  filing  a  certificate,  in  writing,  in, 
the  office  of  the  secretary  of  state,  and  also  in  the  county 
clerk's  office  of  the  county  where  located,  may  become  in- 
corporated— the  amount  of  capital  stock  not  to  be  less  than 
sl(),(!00  nor  more  than  $1,000,000. 

Section  12  of  said  act  is  as  follows  : 

"The  said  company  shall  be  subject  to  the  same  liabili- 
ties as  natural  persons  for  all  the  purposes  of  this  act,  and 
shall  be  liable  in  the  same  manner  and  to  the  same  extent 
as  the  proprietors  of  other  hotels  are  liable,  for  loss,  injury 
or  destruction  of  the  property  of  guests,  except  as  may  be 
otherwise  provided  by  special  written  contract ;  but  this 
section  shall  not  be  construed  so  as  to  make  said  company 
liable  as  hotel  keepers  in  case  said  company  shall  have ; 
leased  said  hotel." 


EXCISE  AND  HOTEL  LAWS. 


143 


The  balance  of  the  act  provides  for  the  powers  and  gen- 
eral management  of  the  corporation,  and  has  no  general  in- 
terest in  this  work. 

SECTIOX  II. 
Hotels  axd  Hotel-Keepers. 

An  inn  is  a  house  where  all  who  conduct  themselves  pr<  >p- 
erly,  and  who  are  able  and  ready  to  pay  for  their  entertain- 
ment, are  received,  if  there  is  accommodation  for  them,  and 
who,  without  any  stipulated  engagement  as  to  the  duration 
of  their  stay,  or  as  to  the  rate  of  compensation,  are,  while 
there,  supplied,  at  a  reasonable  charge,  with  their  meals, 
lodging,  refreshments  and  such  services  and  attention  as 
are  necessarily  incident  to  the  use  of  the  house  as  a  tem- 
porary home.  A  mere  restaurant  or  eating-house  is  not  an 
inn,  nor  a  mere  lodging-house,  in  which  no  provision  is  made 
for  supplying  the  lodgers  with  meals  ;  and,  in  respect  to 
houses  for  the  entertainment  of  travelers,  of  which  there  are 
many,  where  the  guest  or  traveler  pays  so  much  a  day  for 
his  room,  and  takes  his  meals  or  not,  as  he  thinks  proper, 
in  the  restaurant,  paying  separately  for  each  meal,  as  he 
takes  it,  they  are  to  be  considered  inns,  if  the  restaurant 
forms  part  of  the  establishment,  and  the  whole  house  is  kept 
under  one  general  management  for  the  reception  of  all  guests 
or  travelers  that  may  come  there  ;  it  differs  from  a  boarding- 
house  for  the  reason  that  all  who  come  are  received,  and  be- 
cause the  guest  engages  for  no  specific  period,  but  pays  for 
the  time  he  is  there.  [Cromwell  v.  Stevens,  2  Daly,  15;  S.  C, 
3  Abbott  [X.  S.],  26;  and  see  Kopper  v.  Willis,  9  Daly,  460.) 

The  above  is  an  extract  from  the  admirable  opinion  of 
Chief-Justice  Daly,  written  in  the  case  of  Cromwell  v. 
Stevens,  and  in  which  he  gives  a  thorough  history  of  inns, 
taverns  and  hotels,  the  reading  of  which  would  interest  any 
student. 

A  hotel  in  a  city  kept  for  the  entertainment  of  transient 
guests  is  an  inn.  {Taylor  v.  Mbnnott,  1  Abb.,  325.)  A  free 
lunch  at  the  bar,  or  the  occasional  bringing  of  victuals  from 
a  neighboring  restaurant,  will  not  transform  a  drinking 
saloon  into  a  hotel.  {Matter  of  Kelt ey  v.  Excise  Commis- 
sioners, 54  How.,  332.) 


144 


EXCISE  AND  HOTEL  LAWS. 


The  keeper  of  a  restaurant  who  has  no  beds  for  the  accom- 
modation of  travelers  is  not  an  innkeeper.  A  mere  lodging 
house,  in  which  no  provision  is  made  for  supplying  the 
lodgers  with  their  meals,  wants  one  of  the  essential  requi- 
sites of  an  inn.  A  house  which  does  not  contain  the  means 
of  preparing  food  for  the  table  in  the  ordinary  way  has  not 
the  necessary  accommodations  to  entertain  travelers.  (Id.) 

A  proprietor  of  a  house  or  hotel,  on  what  is  called  the 
"  European  plan,"  i.  e.,  the  renting  of  rooms  with  a  restau- 
rant for  meals,  is  the  proprietor  of  a  hotel  within  the  mean- 
ing of  the  act  of  1855,  chapter  421.  (Bernstein  v.  Sweeney, 
1  J.  &  S.,  271.) 

A  person  who  makes  it  his  business  to  entertain  travelers 
and  passengers,  and  provide  lodging  and  necessaries  for 
them,  their  horses  and  attendants,  is  a  common  innkeeper. 
(Overseers  v.  Warner,  3  Hill,  157.)  Hotels,  inns  and  tav- 
erns are  synonymous  terms.  [People  v.  Jones,  54  Barb. ,  311. ) 

SECTION  III. 
Rights  of  Innkeepers. 

The  right  to  keep  an  inn,  in  the  common  law  sense  of  the 
term,  is  not  a  franchise ;  and  hence,  notwithstanding  the 
excise  statutes,  any  person  may  keep  such  a  house  without 
a  license,  as  it  is  a  lawful  trade  open  to  every  citizen. 
(Overseers  v.  Warner,  3  Hill,  150.)  Of  course,  it  will  be 
understood,  that  the  right  to  keep  a  hotel  does  not  carry 
with  it  the  right  to  sell  intoxicating  liquors,  unless  duly 
licensed  so  to  do. 

The  rule,  as  laid  down  in  3  Hill  (supra),  was  in  force 
until  the  act  of  1877,  chapter  419  (ante,  page  45,  section  52), 
by  which  licenses  to  keep  hotels  may  be  granted  as  other 
licenses  are  granted,  but  without  including  the  right  to  sell 
strong  or  spirituous  liquors,  ale,  wines,  beer  or  alcoholic 
drink,  for  which  a  fee  of  five  dollars  may  be  charged,  the 
same  bond  being  required  as  for  other  licenses.  It  is 
probable  that  this  statute  has  changed  the  common  law 
rule  of  the  right  of  every  citizen  to  keep  an  inn,  and  that 
now  if  a  hotel  keeper  wishes  to  avail  himself  of  the  statutes 
for  his  protection,  he  must  have  a  license  as  a  hotel  keeper. 

There  are  no  decisions  upon  this  question  direct.    In  the 


EXCISE  AND  HOTEL  LAWS. 


145 


case  of  Trimmer  v.  Hiscock  (27  Hun,  364),  the  action  was 
brought  by  the  hotel  keeper  for  slander.  The  plaintiff  had 
no  license,  but  the  answer  admitted  that  plaintiff  was  the 
keeper  of  a  public  inn  or  hotel  for  profit,  and  it  was  held 
that  the  defendant  was  concluded  by  his  answer  from  claim- 
ing upon  the  trial  that  the  action  could  not  be  maintained 
because  the  plaintiff  had  failed  to  procure  a  license  to  keep 
a  hotel  as  provided  by  chapter  419,  1877.  It  would  be  in- 
ferred from  above  that  but  for  the  admission  of  the  answer 
the  plaintiff  would  have  failed,  for  the  reason  that  .he  had 
no  license  to  keep  a  hotel.  The  slanderous  words  complained 
of  were,  "He  kept  no  accommodations,  and  a  person  could 
not  get  a  decent  meal  or  decent  bed  if  he  tried  ; ' '  and  it  was 
held,  as  the  words  were  spoken  about  the  plaintiff's  busi- 
ness, they  were  actionable,  per  se. 

Under  section  267  of  the  Penal  Code  (ante,  subdivision  16, 
section  1),  innkeepers  who  sell  spirituous  or  malt  liquors,  or 
wines,  have  no  right  to  sell  prepared  tobacco  upon  the  premi- 
ses, where  he  sells  such  liquors,  on  Sunday  ;  and  prepared 
tobacco  includes  cigars.  For  a  violation  he  is  guilty  of  a 
misdemeanor  and  may  be  punished  by  a  fine  of  from  one  to 
ten  dollars,  or  by  imprisonment  not  exceeding  five  days, 
or  both.  (Subdivision  17.)  And  in  addition  the  property 
offered  for  sale  shall  be  forfeited.    (Subdivision  18.) 

SECTION  IV. 
Duties  of  Innkeepers. 

Every  keeper  of  a  hotel  is  required  by  statute  (ante,  sub- 
division 6,  section  1),  to  post  a  copy  of  chapter  677,  1867,  as 
amended  by  chapter  227, 1883,  in  a  conspicuous  x>lace  in  the 
office  of  his  hotel,  and  also  in  the  public  parlors  ;  and  also 
a  statement  of  charges  for  meals  and  lodging.  Until  the 
amendment  of  1888,  he  was  also  required  to  post  the  same 
in  every  bed-room  of  his  house.  For  a  failure  to  comply 
with  this  provision,  he  is  liable  to  a  forfeiture,  specified  in 
subdivision  6,  and  is  not  entitled  to  receive  payment  for  the 
meals  furnished. 

He  is  also  bound  by  law  to  afford  such  shelter  and  accom- 
modations as  he  possesses  to  all  travelers  who  apply,  and 
who  tender,  or  are  able  and  ready  to  pay,  the  customary 

10 


146 


EXCISE  AND  HOTEL  LAWS. 


hire  or  price,  if  they  are  not  drunk  or  disorderly  or  laboring 
under  contagious  or  infectious  disease  (2  Story  on  Contracts, 
140,  §  744) ;  and  his  duties  are  the  same,  no  matter  what  the 
race,  color  or  previous  condition  of  servitude  of  the  appli- 
cant may  be.  For  a  refusal  he  is  guilty  of  a  misdemeanor 
{ante,  subdivisions  13  and  15,  section  1) ;  and  besides  he  is 
liable  to  an  action  for  the  recovery  of  any  damages  that 
may  have  been  sustained  by  reason  of  such  refusal.  (1 
Wait's  Law  and  Practice,  339.)  He  is  not  bound  to  re- 
ceive the  goods  of  a  person  who  professes  merely  to  make 
use  of  the  inn  as  a  place  of  deposit,  and  to  lodge  therein 
as  a  guest ;  nor  is  he  bound  to  provide  his  guest  with  the 
precise  room  which  the  latter  may  choose  to  select.  (Id., 
340.) 

If  he  keep  a  safe  for  the  safe-keeping  of  money,  etc.,  of 
his  guests,  to  relieve  himself  from  liability  for  loss  he  must 
post  notices  in  the  office  and  public  parlors  of  his  house, 
stating  that  such  safe  is  provided.  (Subdivision  1,  sec- 
tion 1.)  But  it  has  been  held  that  personal  notice  that  a 
safe  is  provided,  is  equivalent  to  posting  the  notice  re- 
quired.   {Purvis  v.  Coleman  &  Stetson,  21  N.  Y.,  111.) 

He  is  bound  to  exert  the  greatest  diligence  in  regard  to 
the  goods  and  chattels  of  his  guests.  If  he  desire  the  pro- 
tection given  him  by  the  law,  it  will  be  his  duty  to  procure 
a  license  as  a  hotel  keeper  (chapter  419,  1877,  ante,  page  45, 
section  52),  or  procure  a  license  under  the  general  excise 
laws  ;  but,  in  the  latter  case,  his  duties  and  responsibilities 
are  increased,  but  will  not  be  referred  to  here,  having  been 
given  in  a  previous  part  of  this  work. 

SECTION  Y. 

LlEX  OF  IXXKEEPEKS. 

An  innkeeper  has  a  lien  upon  all  the  property  of  his  guest, 
in  the  inn  and  its  stables  for  all  his  expenses.  The  lien  does 
not,  however,  extend  to  the  person  of  his  guest,  or  the  per- 
sonal clothing  he  has  on  ;  and  it  only  exists  while  the  owner 
of  the  goods,  in  respect  of  which  it  is  claimed,  is  actually  or 
constructively  a  guest.  It  does  not  attach  upon  the  prop- 
erty of  a  boarder.    (2  Story  on  Contracts,  139,  §  744.) 

The  right  of  lien  of  the  keeper  of  an  inn  is  settled  at  com- 


EXCISE  AND  HOTEL  LAWS. 


147 


mon  law,  and  is  based  upon  sound  reasons.  He  was  com- 
pelled to  receive  the  guest,  and  to  pay  for  all  property  lost 
or  stolen  while  the  guest  remained,  and  nothing  excused 
him  from  this  liability  but  the  act  of  God  or  the  public 
enemy.  On  account  of  this  extraordinary  liability  the  law 
gave  the  innkeeper  a  lien  upon  the  goods  of  his  guest  for  the 
satisfaction  of  his  reasonable  charges.  This  lien  extended 
to  property  brought  by  the  guest  and  not  owned  by  him. 
If  A.  injuriously  take  away  the  horse  of  B.,  and  put  him 
into  an  inn  to  be  kept,  and  B.  come  and  demand  him,  he 
shall  not  have  him  until  he  hath  satisfied  the  innkeeper  for 
his  meat ;  and  that  is  good  law  to  this  day,  if  the  innkeeper 
have  no  notice  of  the  wrong  and  act  honestly.  {Jones  v. 
Morrill,  42  Barb.,  623,*  626;  Mclllvane  v.  Hilton,  7  Hun, 
594;  Fox  v.  McGregor,  11  Barb.,  41,  43;  Gr  inn  ell  v.  CooJc, 
3  Hill,  485;  Peet  v.  McGraio,  25  Wend.,  653;  Ingallsbee  v. 
Wood,  33  1ST.  Y.,  577.) 

It  will  b^  observed  that,  to  create  the  lien,  the  relation  of 
innkeeper  and  guest  must  exist,  for  if  the  owner  of  the 
property  be  a  boarder,  the  innkeeper  has  no  lien.  (Story 
on  Contracts,  supra ;  Moioers  et  al.  v.  Fetliers,  61  Y., 
34,  and  see  cases  above  cited.) 

Where  an  innkeeper  makes  a  special  contract  for  board 
and  lodging  with  his  guest  by  the  week  or  month,  he  has 
no  lien  upon  the  goods  of  the  guest.  {Miscli  v.  0' Hara,  9 
Daly,  361.) 

As  to  what  constitutes  a  guest,  see  next  section.  The 
common-law  rule  as  to  lien  of  innkeepers  still  prevails,  and 
has  not  been  changed  by  statute. 

The  manner  of  disposing  of  the  property  of  the  guest  of 
the  innkeeper  or  boarding-house  keeper,  upon  which  a  lien 
exists  for  care,  board,  etc.,  is  specifically  pointed  out  by 
statute  {ante,  section  1,  subdivision  7  to  12  inclusive),  and 
which  is  so  plain  that  no  comment  will  be  made. 

In  a  case  where  a  fraud  is  practiced  upon  an  innkeeper 
by  a  person  receiving  food  or  accommodation  with  intent 
not  to  pay  for  the  same,  or  where  credit  is  received  by  the 
use  of  any  false  pretense,  or  by  the  person  so  receiving  food 
or  accommodation,  and  thereafter  absconding  and  surrepti- 
tiously removing  his  baggage  without  making  payment,  the 


148 


EXCISE  AND  HOTEL  LAWS. 


person  so  offending  is  gnilty  of  a  misdemeanor,  and  may  be 
proceeded  against  criminally.  (See  subdivisions  5  and  14, 
section  1.) 

SECTION  VI. 

Guests. 

It  is  not  always  easy  to  decide  when  a  sojourner  at  a  hotel 
or  inn  sustains  the  relation  of  a  guest.  Travelers  and  others 
who  come  to  an  inn,  and  without  previous  stipulation  or 
engagement  as  to  the  duration  of  their  stay,  or  as  to  rate  of 
compensation,  and  who  are  able  and  ready  to  pay  for  their 
entertainment  and  accommodations,  and  who  are  received 
and  entertained  and  use  the  inn  as  a  temporary  home,  are 
guests ;  and  while  behaving  properly,  and  are  not  drunk, 
disorderly  or  laboring  under  contagious  or  infectious  dis- 
eases, are  entitled  to  be  received  and  remain  as  such,  if  they 
come  at  a  proper  time,  and  the  innkeeper  can  accommodate 
them. 

But  slight  entertainment'  is  necessary  to  be  received  to 
constitute  a  person  a  guest.  {Kopper  v.  Willis,  9  Daly,  460.) 
It  has  been  held  that  the  purchase  of  a  drink  of  liquor  was 
enough  to  constitute  a  party  a  guest.  (1  Wait's  Law  and 
Prac,  340;  McDonald  v.  Edgerton,  5  Barb.,  560;  2  Kent's 
Com.,  593;  Clute  v.  Wiggins,  14  John.,  175.) 

If  a  traveler,  having  stopped  at  a  hotel,  leave  his  horse 
there  and  go  out  to  lodge  and  dine  with  a  friend,  he  is  a 
guest,  and  the  same  rule  holds  good  so  far  as  relates  to  prop- 
erty, for  the  care  and  keeping  of  which  the  innkeeper  is  to 
receive  compensation,  though  the  traveler  leave  the  inn  and 
go  to  a  neighboring  town,  intending  to  be  absent  several 
days.  (Grinnell  v.  CooJc,  3  Hill,  486.)  But  if  the  horse  be 
left  at  the  inn  by,  the  owner,  and  he  does  not  ask  or  receive 
accommodation  there  for  himself,  he  is  not  a  guest.  (In- 
gallsbee  v.  Wood,  36  Barb.,  452;  affirmed,  33  N.  Y.,  577.) 

In  the  case  in  3  Hill,  the  owner  first  stopped  at  the  hotel 
and  became  a  guest,  and  did  not  break  the  relation  by  going 
away.  {McDonald  v.  Edgerton,  5  Barb.,  560.)  It  is  not 
necessary  that  a  person  be  at  the  inn  in  person  if  his  prop- 
erty be  there  in  charge  of  his  wife  or  servant  or  agent,  there 
in  his  employ,  or  as  a  member  of  his  family,  he  is  a  guest, 


EXCISE  AND  HOTEL  LAWS. 


149 


but  they  must  be  there  in  such  a  way  that  the  law  will 
imply  the  property  is  in  his  possession.  (CoyTcendall  v. 
Eaton,  55  Barb.,  188.) 

Where  a  person,  not  being  a  traveler,  comes  upon  a  special 
contract,  and  stay,  he  is  a  boarder,  and  not  a  guest.  So, 
also,  a  neighbor  or  friend,  who  comes  at  the  request  of  the 
innkeeper,  is  not  a  guest.  But  if  a  traveler  puts  up  at  an 
inn,  and  be  there  received  as  a  guest,  he  does  not  cease  to 
be  a  guest  and  become  a  boarder,  simply  by  making  a 
special  agreement  for  the  price  of  his  board  per  week. 
(2  Story  on  Contracts,  146,  section  746;  Hancock  v.  Rand, 
17  Hun,  279.) 

It  will  be  observed  by  a  perusal  of  subdivisions  13  and 
15,  section  1,  that  all  persons,  no  matter  what  may  have 
been  their  former  condition,  or  of  what  race  or  color,  are 
entitled  to  be  received  as  guests  at  any  inn  and  to  be  enter- 
tained, and  receive  an  equal  enjoyment  of  the  accommoda- 
tions of  such  inn,  and  if  the  innkeeper  should  refuse  to 
receive  them,  he  would  be  guilty  of  a  misdemeanor.  But 
if  the  person  making  application  to  be  received  as  a  guest 
be  disorderly,  the  innkeeper  may  not  only  refuse  him,  but, 
after  he  has  received  him,  may  eject  him  from  his  house. 
(2  Story  on  Contracts,  140,  section  744.) 

The  chamber  of  a  guest  at  an  inn  is  not  his  dwelling- 
house,  but  that  of  his  landlord  {Rodger 'S  v.  People,  86 
N.  Y.,  360),  the  reason  being  that  the  guest  has  no  interest, 
but  only  the  use  of  the  chamber  for  the  time  being.  The 
legal  possession  of  the  room  is  in  the  innkeeper,  who  must 
answer  for  the  loss  of  goods  of  the  guest  by  theft,  only 
giving  temporary  occupancy  to  the  guest  in  the  prosecution 
of  his  business  as  innkeeper.  (Id.) 

A  person  attending  a  dance  at  a  hotel,  on  an  invitation 
*issued  by  the  hotel  keeper,  and  stabling  his  horse  in  the 
barn  connected  with  the  hotel,  purchasing  liquors  and  pay- 
ing his  dancing  bill,  has  been  held  not  to  sustain  the  rela- 
tion of  a  guest.    {Fitch  v.  Casler,  17  Hun,  126.) 


150 


EXCISE  AND  HOTEL  LAWS. 


SECTION  VII. 

Liability  of  Lsfnkeepeks  for  Loss  of  Money,  Jew- 
els, etc. 

As  the  law  stood  previous  to  the  act  of  1855  (chapter  421, 
ante,  section  1,  subdivision  1),  an  innkeeper's  liabilities  were 
nearly  the  same  as  those  of  a  common  carrier.  He  was 
bound  to  exercise  the  greatest  diligence  in  regard  to  all  the 
goods  and  chattels  of  his  guests,  whether  placed  in  his  im- 
mediate possession,  or  deposited  in  the  room  assigned  to 
the  guest.  {Van  WycTc  v.  Howard,  12  How.,  147.)  He 
was  regarded  as  an  insurer  of  all  property  committed  to  his 
care  {Hulett  v.  Swift,  33  N.  Y.,  571),  and  if  such  property 
was  in  his  house  it  was  under  his  implied  care,  whether 
he  was  ignorant  of  such  fact  or  not,  and,  if  stolen,  he  was 
responsible.  And  so  if  stolen  from  the  room  of  a  guest, 
the  innkeeper  was  liable,  although  he  had  no  notice  that 
they  were  placed  there.  This  was  so  with  money,  jewels, 
ornaments,  baggage  or  other  chattels,  and  mere  proof  of  a 
loss  by  a  guest  rendered  him  prima  facie  liable.  He 
might,  however,  exonerate  himself  by  proving  that  the 
guest  had  undertaken  the  exclusive  custody  of  the  goods, 
or  that  they  were  lost  by  his  own  negligence,  or  that  the 
loss  resulted  from  inevitable  casualty.  The  rules  of  the 
common  law  touching  the  liabilities  of  innkeepers  have  not 
been  relaxed  by  the  courts,  and  are  in  full  force,  except 
as  changed  by  statute,  or  as  they  may  be  modified  by 
special  contract.    (Ramaley  v.  Leland,  43  X.  Y.,  539.) 

The  rule  still  prevails  as  to  innkeepers,  who  do  not  avail 
themselves  of  the  protection  afforded  by  procuring  a  safe, 
except  as  it  has  been  modified  by  a  very  recent  statute 
(section  2,  chapter  227,  1883,  ante,  subdivision  2,  section  1), 
by  which  the  liability  of  the  innkeeper  for  the  loss  of  wear- 
ing apparel,  goods  or  merchandise  is  confined  to  a  sum  not 
exceeding  8500,  where  it  appears  that  such  loss  occurs  with- 
out his  fault  or  negligence  ;  and  which  statute  also  relieves 
the  hotel  keeper  from  liability  for  the  loss  of  any  wearing 
apparel  or  other  chattel,  unless  within  a  room  assigned  to 
the  guest,  or  specially  intrusted  to  the  care  and  custody  of 
such  hotel  keeper  or  his  servants. 


EXCISE  AND  HOTEL  LAWS. 


151 


This  section  is  stated  as  an  amendment,  but  is  in  reality 
a  new  statute,  which  greatly  changes  the  common-law  rule 
as  stated  above,  and  is  an  equitable  enactment.  It  will  be 
observed  that  where  a  loss  occurs  through  the  fault  or  negli- 
gence of  the  innkeeper,  he  may  still  be  liable  in  a  greater 
sum  than  8500.  If  he  do  not  procure  the  safe  and  give  the 
notice  as  required,  he  is  still  liable  for  the  loss  of  money, 
jewels,  etc., — money  or  jewels  not  being  "goods  or  mer- 
chandise " — when  stolen  or  lost  from  the  room  assigned  the 
guest,  or  from  his  own  carelessness.  {Kellogg  v.  Sweeney, 
1  Lams.,  398.) 

Section  1  of  the  act  of  1855  as  originally  passed  required 
notice  to  be  posted  in  each  of  the  bedrooms  of  the  inn,  but 
by  the  amendment  of  1883,  such  notices  are  now  only  re- 
quired to  be  posted  in  the  office  and  public  room,  and  in 
the  public  parlors,  and  the  guest  may  deliver  such  articles 
to  the  person  apparently  in  charge  of  the  office  for  deposit 
in  the  safe.  But  it  has  been  held  that,  if  notice  is  given 
personally  to  the  guest  that  a  safe  is  provided,  that  it  has 
the  same  force  and  effect  as  the  posted  notice.  {Purvis  v. 
Coleman  &  Stetson,  21  JNT.  Y.,  111.) 

And  where  a  guest  entered  his  name  on  the  register  under 
the  printed  heading,  as  follows  :  "Money,  jewels  and  other 
valuable  packages,  it  is  agreed  shall  be  placed  in  the  safe 
in  the  office,  otherwise  the  proprietor  shall  not  be  responsi- 
ble for  any  loss,"  and  there  was  no  proof  that  this  notice 
was  seen  or  assented  to  by  the  guest ;  held,  that  it  was  not 
his  contract.  {Bernstein  v.  Sweeney,  1  J.  &  S.,  271;  Rama- 
ley  v.  Leland,  6  Rob. ,  558. ) 

The  statutory  exemption  applies  to  all  money,  jewels  and 
ornaments,  and  applies  to  every  case  where  the  guest  has 
the  time  and  opportunity  to  make  the  deposit ;  his  omission 
to  do  so  is  a  neglect  within  the  meaning  of  the  statute, 
although  no  carelessness  or  imprudence  is  shown.  {Rosen- 
plaenter  v.  Roessle,  54  1ST.  Y.,  262.)  The  protection  to  inn- 
keepers is  not  limited  to  money  or  valuables  in  excess  of 
what  the  guest  may  reasonably  require  for  his  traveling  ex- 
penses or  personal  convenience,  but  embraces  all  "money, 
jewels  or  ornements"  which  the  guest  may  bring  with  him 
without  reference  to  the  amount  or  value.    {Hyatt  v.  Tay- 


152 


EXCISE  AND  HOTEL  LAWS. 


lor,  42  N.  Y.,  258;  affirming,  51  Barb.,  632.)  And  where  a 
gnest  deposited  a  package  of  §20,000  in  money,  stating  that 
it  contained  money,  but  not  disclosing  the  amount,  the  land- 
lord was  held  liable  for  its  loss.  (Wilklns  v.  JjJarle,  44 
N.  Y.,  172.) 

In  the  case  of  Rosenplaenter  v.  Roessle  {supra),  Judge 
Earl  in  his  opinion,  page  266,  says,  "The  law  is  settled  in 
this  State  that  if  a  guest,  on  retiring  to  bed  at  night,  removes 
a  watch  or  jewelry  from  his  person,  or  leaves  money  in  his 
pockets  and  neglects  to  deposit  the  same  in  the  safe  provided 
for  that  purpose,  he  cannot  hold  the  landlord  liable  for  the 
loss  of  the  same."  The  learned  judge  cited  the  case  of 
Hyatt  v.  Taylor  (42  IN".  Y.,  258),  in  support  of  above,  but 
in  neither  of  the  cases  did  the  question  arise  as  to  a  watch, 
and  whether  it  was  included  in  the  exempted  articles  ;  and 
"a  decision  is  only  binding  for  such  law  as  is  necessarily 
decided  therein."    (Sharp  v.  Fanclier,  29  Hun,  194.) 

The  case  of  Ramaleyv.  Leland  (43  N.  Y.,  539),  was  ignored 
in  the  case  of  Rosenplaenter  v.  Rosette,  suproj.  In  the  former 
case  it  was  held  that  the  watch  of  a  guest  at  an  inn,  worn  and 
used  in  the  ordinary  manner  is  neither  a  "jewel  or  orna- 
ment" within  the  meaning  of  the  act,  and  the  innkeeper  is 
liable  for  the  loss  thereof  in  the  room  of  the  guest,  notwith- 
standing his  compliance  with  the  act.  And  Judge  Allen  in 
the  opinion,  page  542,  says,  "A  watch  is  neither  a  jewel  or 
ornament,  as  these  words  are  used  and  understood,  either 
in  common  parlance  or  by  lexicographers.  It  is  not  used  or 
carried  as  a  jewel  or  ornament,  but  as  a  time  piece  or  chro- 
nometer— an  article  of  ordinary  wear  by  most  travelers  of 
every  class,  and  of  daily  and  hourly  use  by  all.  It  is  carried 
for  use  and  convenience  and  not  for  ornament."  In  this 
case  the  question  was  before  the  court,  and  its  decision  will 
undoubtedly  prevail.  In  support  of  above,  see  Bernstein  v. 
Sweeney  (1  J.  &  S.,  271). 

A  guest  neglected  to  deposit  a  large  package  containing 
jewelry.  About  the  time  he  was  to  leave  the  hotel  he  packed 
his  trunk,  in  which  he  put  the  package,  then  delivered  the 
key  of  his  room  to  the  hotel  clerk,  requesting  the  trunk 
brought  down  immediately.  Before  brought  down  the  room 
was  entered  and  the  package  stolen  from  the  trunk,  and  the 


EXCISE  AND  HOTEL  LAWS. 


158 


innkeeper  was  held  to  be  liable,  and  that  the  act  was  not 
intended  to  apply  to  losses  occurring  before  the  guest  had  an 
opportunity  to  make  the  deposit,  or  after  he  had  packed  his 
trunk  and  given  notice  for  immediate  departure.  {Bendet- 
son  v.  French,  46  N.  Y.,  26(3.) 

The  liability  of  the  innkeeper  is  great,  and  he  should  be 
careful  to  provide  a  suitable  safe,  and  post  the  notices  as  re- 
quired by  law  and  with  care  he  is  relieved  of  much  of  the 
common  law  liability. 

SECTION  VIII. 

Liability  for  Loss  of  Guests'  Baggage  and  Effects 

Generally. 

The  common  law  liability  of  innkeepers,  for  the  loss  of 
the  chattels  of  their  guests,  has  been  briefly  laid  down  and 
alluded  to  in  the  preceding  section.  This  liability  has  been 
very  much  lessened  by  statutes.  The  liability  for  the  loss 
of  money,  jewels,  etc.,  has  been  already  treated  of.  The 
statutes  limiting  the  liability  generally  are  given  {ante,  subdi- 
visions 2,  3  and  4,  section  1.)  By  subdivision  2,  passed  in  1883, 
the  liability  is  limited  to  a  sum  not  exceeding  $500,  where 
the  loss  occurs  without  the  fault  or  negligence  of  the  hotel 
keeper  ;  and  in  no  case  is  he  liable  unless  the  goods  or  chat- 
tels are  within  the  room  assigned  to  the  guest,  or  specially 
intrusted  to  the  care  and  custody  of  the  hotel  keeper  or  his 
servants.  By  section  3,  he  is  not  liable  for  property  stored 
in  the  hotel  barn  or  out-building  with  the  knowledge  of  the 
guest,  and  consumed  by  fire,  where  such  fire  is  the  work  of 
an  incendiary,  and  occurs  without  the  fault  or  negligence 
of  the  innkeeper.  And  by  subdivision  4,  his  ]iabilit}T  for 
loss  by  fire  of  any  animal  is  limited  to  8300,  unless  by  agree- 
ment a  higher  estimate  is  agreed  upon. 

These  statutes  do  away  with  many  of  the  decisions  affect- 
ing the  liability  of  hotel  keepers  made  before  the  statutes 
were  passed,  and  which  decisions  will  not  now  be  cited. 

The  common  law  liability,  except  as  limited  by  statute,  is 
still  in  force.  And  to  enforce  the  strict  common  law  lia- 
bility of  an  innkeeper  the  technical  relation  of  guest  and 
innkeeper  must  be  established.    {Mowers  et  al.  v.  FebJiers, 


154 


EXCISE  AND  HOTEL  LAWS. 


61  N.  Y.,  34;  Ingallsbee  v.  Wood,  33  id.,  577;  Fitch  v.  <7as- 
Zer,  17  Hun,  126.) 

The  rule  of  the  common  law  was  stated  in  Cross  v.  An- 
drews (Croke's  Eliz.),  as  follows  :  "The  defendant,  if  he  will 
keep  an  inn,  ought,  at  his  peril,  to  keep  safely  his  guests' 
goods.  He  must  guard  them  against  the  incendiary,  the 
burglar  and  the  thief  ;  and  he  is  equally  bound  to  respond 
for  their  loss,  whether  caused  by  his  own  negligence  or 
by  the  depredations  of  knaves  and  marauders,  within  or 
without  the  curtilage."  {Hulett  v.  Smith,  33  K.  Y.,  574.) 
The  above  case  was  decided  in  1865,  and  the  rule,  as  stated 
above,  was  held  to  be  good  then. 

Under  the  provisions  of  the  innkeeper  act  of  1866  (chapter 
658,  ante,  section  1,  subdivision  3),  exempting  an  innkeeper 
from  liability  for  the  loss  by  fire  of  property  of  a  guest  in  a 
barn  or  out-building,  where  it  shall  appear  that  the  loss  was 
the  work  of  an  incendiary,  and  occurred  without  negligence 
on  his  part,  the  burden  is  upon  the  innkeeper  to  show  that 
the  fire  was  an  incendiary  one,  and  to  show  absence  of  neg- 
ligence on  his  part.    {Faucett  v.  Nichols,  64  1ST.  Y.,  377.) 

Negligence  which  precedes  and  facilitates  the  commission 
of  the  crime  is  as  much  within  the  statute  as  the  negligent 
omission  to  protect  and  remove  the  property  after  discovery 
of  the  fire.  (Id.) 

An  innkeeper  is  responsible  for  the  safe-keeping  of  a  load 
of  goods  belonging  to  a  traveler  who  stops  at  his  inn  for  the 
night,  if  the  carriage  containing  the  goods  be  deposited  in  a 
place  designated  by  the  servant  of  the  innkeeper,  although 
such  place  be  an  open  uninclosed  space  near  the  highway. 
{Piper  v.  Manny,  21  Wend.,  282.)  The  place  where  the 
goods  are  deposited  is  not  the  test ;  it  is  whether  they  are  in 
the  custody  of  the  innkeeper  or  at  the  risk  of  the  guest. 
(Id.,  283.)  But  if  sheep  be  put  to  pasture  under  the  direc- 
tion of  the  guest,  and  are  injured  by  eating  poisonous  plants, 
the  innkeeper  is  not  liable  unless  chargeable  with  negligence 
or  want  of  due  care.    {Hawley  v.  Smith,  25  Wend.,  642.) 

In  one  case  the  guest  put  his  horses  in  the  barn,  had  them 
fed,  and  took  dinner  himself.  After  paying  his  bill  he  re- 
quested the  innkeeper  to  get  his  team  ;  the  latter  told  him 
to  go  on  and  hitch  up,  and  he  would  be  there  soon.  In 


EXCISE  AND  HOTEL  LAWS. 


155 


leading  the  horses  out  one  of  them  was  kicked,  resulting  in 
its  death,  and  it  was  held  that  the  innkeeper's  liability  was 
not  at  an  end  ;  that  unless  there  was  some  improper  conduct 
on  the  part  of  the  guest,  the  innkeeper  was  as  much  liable 
as  though  leading  them  himself.  That  he  was  simply  doing 
what  it  was  the  duty  of  the  innkeeper  to  do  himself,  and 
was  so  doing  at  his  request.  {Seymour  v.  Cook,  53  Barb  , 
451.) 

An  innkeeper  letting  the  hall  in  his  hotel  for  public  pur- 
poses, holds  out  to  the  public  that  it  is  safe,  and  is  bound 
to  exercise  proper  care  in  providing  safe  arrangements  for 
entrance  and  departure  to  those  invited  to  the  hall,  and 
where  a  person  is  injured  through  a  dangerous  condition  of 
the  premises,  the  owner  is  liable  to  respond  in  damages. 
(Camp  v.  Wood,  76  K  Y.,  92.) 

By  chapter  446  of  the  Laws  of  1860,  the  keeper  of  a  board- 
ing-house has  the  same  lien  upon  and  right  to  detain  bag- 
gage and  effects  of  any  boarder,  for  the  amount  which  may 
be  due  for  board  by  such  boarder,  to  the  same  extent  and 
in  the  same  manner  as  innkeepers  have  such  lien  and  such 
right  of  detention. 

Under  the  above  statute  the  keeper  of  the  boarding-house 
has  the  lien  without  reference  to  the  character  of  the  guests, 
whether  they  are  transient  or  permanent  boarders.  (Slew- 
art  v.  McCready,  24  How.,  62.)  But  this  lien  only  exists  for 
the  amount  actually  due  by  the  boarder,  and  not  including 
board  to  become  due  under  an  agreement  to  board  in  future  ; 
nor  can  it  be  extended  to  any  other  indebtedness, 
nor  to  any  demand  not  due  at  the  time  of  the  detention. 
(Sliafer  v.  Guest,  35  How.,  184.)  The  act  confers  no  greater 
rights  than  innkeepers  possessed  at  common  law.  (Mc Ill- 
vane  v.  Hilton,  7  Hun,  594.)  The  lien  exists  upon  goods 
brought  upon  the  premises  by  a  boarder,  to  furnish  his 
room,  although  they  in  fact  do  not  belong  to  the  boarder 
but  to  a  stranger.    (Jones  v.  Morrill,  42  Barb.,  623.) 

The  boarding-house  keeper  is  also  liable  for  the  loss  of  his 
guest' s  goods,  occasioned  through  the  negligence  of  his  own 
servants  while  they  are  acting  within  the  scope  of  their 
employment.  He  must  exercise  due  and  proper  care  of  the 
baggage  or  property  of  his  boarder,  such  as  a  prudent  per- 


156 


EXCISE  AND  HOTEL  LAWS. 


son  would  take  of  his  own  property.  {Smith  v.  Read,  52 
How.,  14.) 

The  lien  of  boarding-house  keepers  and  their  liability  for 
the  loss  of  the  effects  of  their  boarders,  does  not  extend  to 
every  private  house-keeper,  who  may  occasionally  keep  one 
or  more  boarders,  but  only  to  those  where  the  business  of 
keeping  boarders  is  generally  carried  on,  and  which  is  held 
out,  by  the  owner  or  keeper,  as  a  place  where  boarders  are 
kept,    (Cady  v.  McDowell,  1  Lans.,  484  ) 

As  this  part  of  the  work  is  intended  more  esj)ecially  for 
the  benefit  of  innkeepers,  no  more  of  the  many  decisions 
in  relation  to  boarding-house  keepers  will  be  cited.  It  will 
be  noticed  by  reference  to  the  statute  as  amended  in  1883 
(ante,  section  1,  subdivision  6),  that  it  is  no  longer  neces- 
sary for  boarding-house  keepers  to  post  that  statute  or  their 
rate  of  charges  in  their  house. 

Boarding-house  keepers  are  given  a  lien  upon  the  effects 
of  their  guests,  but  innkeepers  have  no  lien  upon  the 
effects  of  their  boarders. 

SECTION  IX. 
Enforcing  the  Liability. 

Under  the  earlier  decisions  upon  the  subject  of  suits  to 
enforce  the  liability  incurred  by  innkeepers,  for  the  loss  of 
their  guests'  baggage  or  other  chattels,  such  an  action  was 
not  one  that  would  authorize  an  order  of  arrest  under  section 
179  of  the  Code  of  Procedure,  except  when  the  defendant 
was  not  a  resident  of  the  State,  or  being  such  was  about  to 
depart  therefrom,  etc.  (People  v.  Willett,  26  Barb.,  78.) 
But  in  a  late  case  it  was  held  to  come  within  section  549  of 
the  Code  of  Civil  Procedure,  and,  therefore,  the  defendant 
might  be  arrested  in  the  first  instance  by  an  order  of  arrest ; 
or  at  the  end  of  a  judgment  an  execution  might  be  issued 
thereon,  being,  as  therein  held,  for  an  "injury  to  property," 
as  stated  in  section  549.  {Catlin  v.  Adirondack  Co.,  20 
Hun,  19.)  This  was  a  case  against  a  common  carrier.  But 
in  HalleribaTce  v.  Fish  (8  Wend.,  547),  it  was  decided  that  the 
liability  of  an  innkeeper  and  common  carrier  were  similar. 

The  complaint,  however,  should  allege  the  cause  of  action 


EXCISE  AND  HOTEL  LAWS. 


157 


as  in  other  cases,  in  a  plain  concise  manner,  either  on  con- 
tract or  in  tort,  and  the  former  might  be  unsafe.  It  should 
never  be  upon  contract  and  in  tort,  else  the  defendant,  if 
successful,  would  have  conferred  upon  him  the  right  to  the 
most  beneficial  remedy  for  the  collection  of  his  costs,  and 
therefore  an  execntion  against  the  body  might  issue  on  his 
judgment  ;  while  if  the  plaintiff  should  be  successful  in 
recovering  a  judgment  in  such  a  case,  the  defendant  would 
not  be  liable  in  tort,  but  upon  a  contract,  {^filler  v.  Scher- 
der,  2  N.  Y.,  262.) 

If  the  plaintiff  desires  to  escape  the  perils  of  imprison- 
ment if  he  is  unsuccessful,  he  must  be  careful  of  his  plead- 
ings, and  found  his  complaint  entirely  upon  contract ;  while 
if  he  desires  the  benefit  of  section  549,  he  must  plead  in 
tort,  and  in  such  a  manner  that  there  may  be  no  mistake  as 
to  his  intention. 

By  an  examination  of  the  authorities  cited  in  the  Cat! in 
Case  {supra),  the  rule  so  far  as  settled,  will  be  apparent. 


FORMS. 


No.  1. 

Oath  of  Office  of  Commissioner  of  Excise. 
State  of  New  York,  ) 

f  88..' 

County  of  Albany,  ) 

I,  ,  do  solemnly  swear  that  I  will  support  the  constitution  of  the  United 

States,  and  the  constitution  of  the  State  of  New  York,  and  that  I  will  faith- 
fully discharge  the  duties  of  the  office  of  commissioner  of  excise  of  the  town 
of  Knox,  in  said  county,  according  to  the  best  of  my  ability. 

And  I  do  further  solemnly  swear  that  I  have  not,  directly  or  indirectly,  paid, 
offered  or  promised  to  pay,  contributed,  or  offered  or  promised  to  contribute, 
any  money  or  other  valuable  thing  as  a  consideration  or  reward  for  the  giving 
or  withholding  a  vote  at  the  election  at  which  I  was  elected  to  said  office,  and 
have  not  made  any  promise  to  influence  the  giving  or  withholding  any  such 
vote. 

Subscribed  and  sworn  to  before  me,  ) 
this  day  of  ,  1883.  j 


No.  2. 

Bond  of  Commissioner  of  Excise. 
Know  all  men  by  these  presents :  That  we,  A.  B.,  C.  D.  and  E.  F.,  each  of  the 
town  of  Knox,  county  of  Albany,  and  State  of  New  York,  are  held  and  firmly 
bound  unto  G.  H.,  supervisor  of  said  town,  and  to  his  successor  in  office,  in 
the  penal  sum  of  $  (double  the  amount  of  the  excise  money  of  the  pre- 
ceding year),  to  be  paid  to  the  said  supervisor,  or  to  his  successor  in  office,  for 
which  payment  well  and  truly  to  be  made,  we  bind  ourselves,  our  and  each  of 


160 


FORMS. 


our  heirs,  executors  and  administrators,  jointly  and  severally,  firmly  by  these 
presents. 

Sealed  with  our  seals  and  dated  this  day  of  ,  1883. 

Whereas,  the  above  bounden  A.  B.  was,  on  the  day  of  ,  1 883, 

duly  elected  commissioner  of  excise  of  the  said  town  of  Knox,  for  the  term  of 
three  years;  now,  therefore,  the  condition  of  this  obligation  is  such  that,  if  the 
said  A.  B.  shall  faithfully  discharge  the  duties  of  his  office  as  such  commis- 
sioner of  excise,  and  shall,  within  thirty  days  after  the  receipt  thereof,  pay 
over  to  the  said  supervisor,  or  to  his  immediate  successor  or  successors  in  office, 
all  moneys  received  by  him  as  such  commissioner  of  excise,  then  this  obliga- 
tion to  be  void,  otherwise  to  remain  in  full  force  and  virtue. 

In  witness  whereof,  we  have  hereunto  set  our  hands  and  seals  this  day 

of  ,  1883. 

:  &.B.] 

 tU  B.j 

 [LB.] 

I  hereby  approve  of  the  foregoing  bond,  both  as  to  form,  and  as  to  the  suffi- 
ciency of  the  sureties. 
Dated  ,  1883. 

G.  H.,  Supervisor. 


No.  3. 

Application  for  Innkeeper's  License — Section  12,  Chapter  1. 

To  the  Board  of  Commissioners  of  Excise,  in  and  for  the  ...  . . .  of  ,  county 

of  : 

The  undersigned  applicant  for  license,  respectfully  represent  that  de- 
sire to  sell  and  dispose  of  strong  and  spirituous  liquors,  wines,  ale  and 
beer,  in  quantities  less  than  five  gallons  at  a  time,  to  be  drank  on  the  premises 

at  ,  of  ,  county  of   That  propose    to  keep  an  inn, 

tavern  or  hotel  thereat;  that  the  only  person   interested  in  the  business  to 

authorize  which  the  license  shall  be  used. 

Dated  ,  1883. 

(Signed)     

County  of  ,  ss.: 

 ,  being  duly  sworn,  say   ,  the  foregoing  application  by  h  subscribed 

is  true. 

Subscribed  and  sworn  to  before  me,  ) 
this  day  of  ,  188  .  j 


FORMS. 


161 


No.  4- 

Application  for  Storekeeper's  License— Sections  12,  22  and  23. 
To  the  Board  of  Commissioners  of  Excise  of  the  : 

The  undersigned  respectfully  represent  that  desirous  to  sell  and  dis- 
pose of  strong  and  spirituous  liquors,  wines,  ale  and  beer  in  quantities  less  than 

five  gallons  at  a  time,  at  ,  in  the  of  ,  but  not  to  be  drank 

on  the  said  premises,  nor  in  the  house  or  shop  of  the  undersigned,  or  in  any 
out-house  or  yard  or  garden  appertaining  thereto  or  connected  therewith. 

And,  therefore,  ,  who  the  only  person   to  be  interested  in  the 

said  business,  pray   that  a  license  may  be  granted  to  the  undersigned  for  the 

purpose  aforesaid,  on   paying  such  lawful  license  fee  as  may  be  required 

in  the  premises. 

Dated  ,188  . 


No.  5. 

Application  for  License  to  sell  Ale  and  Beer — Sections  12,  and  45. 
To  the  Board  of  Commissioners  of  Excise,  in  and  for  tlie  of   ,  county 

of  .•  "   ..  Jm 

The  undersigned  applicant  for  license  respectfully  represent  that  de- 
sirous to  sell  and  dispose  of  ale  and  beer  in  quantities  less  than  five  gallons  at  a 

time,  to  be  drank  on  the  premises,  at  of  ,  county  of  ,  and 

pray  on   own  behalf,  as  the  only  person   intended  to  be  interested  in 

the  business  aforesaid,  that  may  have  a  license  as  above  stated,  pursuant 

to  law,  upon  paying  such  license  fee  as  may  be  lawfully  required  in  the 
premises. 

Dated  ,188  . 


No.  6. 

Bond  of  Innkeeper — Section  18. 

Know  all  men  by  these  presents  :  That  we,  ......  and  and  ,  each 

of  the  of  ,  county  of   ,  and  State  of  New  York,  are  held 

and  firmly  bound  unto  the  people  of  the  State  of  New  York,  in  the  penal  sum 
of  $250,  to  be  paid  to  the, said  people;  for  which,  payment*  w§lj  and  truly  to 
be  made,  we  bind,  ourselves,  our  and  each  of  our  heirs,  executors  and  admin- 
istrators, jointly  and  severally,  firmly  by  these  presents. 

Sealed  with  our  seals  and  dated  the  day  of  ,  188  . 

11 


162 


FORMS. 


Whereas,  the  said  intends  keeping  an  inn,  tavern  or  hotel,  at  , 

in  the  said  ,  and  is  an  applicant  to  the  board  of  commissioners  of  excise  of 

 ,  for  a  license  to  sell  strong  and  spirituous  liquors,  wines,  ale  and  beer,  to  be 

drank  in  the  said  inn,  tavern  or  hotel,  to  be  kept  as  aforesaid,  pursuant  to  the 
provisions  of  an  act  entitled  "An  act  regulating  the  sale  of  intoxicating 
liquors,"  passed  April  11th,  1870. 

Now,  therefore,  tlie  condition  of  this  obligation  is  such,  that  if  the  said  , 

during  the  time  that  he  shall  keep  such  inn,  tavern  or  hotel,  will  not  suffer  it 
to  be  disorderly,  or  suffer  any  gambling,  keep  a  gambling  table  of  any  descrip- 
tion within  the  inn,  tavern  or  hotel  so  kept  by  him,  or  in  any  out-house,  yard 
or  garden  belonging  thereto,  then  this  obligation  to  be  void,  else  to  remain  in 
full  force. 

 [L.  8.] 

 [L.  6.] 

 [L.  B.] 

Signed,  sealed  and  delivered  ) 
in  presence  of  ) 


County  of  ,  ss.: 

On  this  day  of  ,  A.  D.  188   ,  before  me  personally  came  , 

to  me  known  to  be  the  individuals  described  in  and  who  executed  the  forego- 
ing bond,  and  severally  acknowledged  that  they  executed  the  same  for  the  uses 
and  purposes  herein  mentioned. 


County  of  ,  ss.: 

 and  of  the  ,  in  said  county,  being  duly  sworn,  each  for 

himself  doth  depose  and  say,  that  he  is  worth  the  sum  of  $500  above  all  just 

debts  and  liabilities,  and  the  deponents  reside  in  the  ,  county  of  , 

and  State  of  New  York. 


Subscribed  and  sworn  before  me,  ) 
this  day  of  ,188  .  ) 


We,  the  undersigned,  commissioners  of  excise  of  ,  do  hereby  approve 

of  the  security  to  the  above  bond. 
Dated  at     •  •  •>  this  day  of  j  ,188  • 


FORMS. 


163 


No.  7. 

Bond  for  Storekeeper's  License — Section  23. 

Know  all  men  by  these  presents:  That  we,   and   and  , 

of  ,  county  of  ,  and  State  of  New  York,  are  held  and  firmly 

bound  unto  the  people  of  the  State  of  New  York,  in  the  sum  of  $500,  to  be 
paid  to  the  said  people;  for  which  payment,  well  and  truly  to  be  made,  we 
bind  ourselves,  our  and  each  of  our  heirs,  executors  and  administrators,  jointly 
and  severally,  by  these  presents. 

Sealed  with  our  seals,  and  dated  the   day  of  ,188  . 

Whereas,  the  said   is  an  applicant  to  the  board  of  commissioners  of 

excise  of  the  for  a  license  to  sell  strong  and  spirituous  liquors,  wines, 

ale  and  beer,  as  a  store-keeper,  pursuant  to  the  provisions  of  an  act  entitled 
"An  act  to  suppress  intemperance  and  to  regulate  the  sale  of  intoxicating 
liquors,"  passed  April  16,  1857,  and  the  acts  passed  in  addition  and  subsequent 
thereto. 

NOW,  THEREFORE,  THE  CONDITION  OF  THIS  OBLIGATION  IS  SUCH,  that  if  the 

said  ,  during  the  time  that  he  shall  keep  any  store,  will  not,  during  the 

term  for  which  such  license  shall  be  granted,  suffer  his  place  of  business  to 
become  disorderly,  and  will  not  sell  or  suffer  to  be  sold  any  strong  or  spirituous 
liquors,  or  wines,  ale  or  beer,  to  be  drank  at  said  premises,  or  in  his  shop  or 

house,  or  in  any  out-house,  yard  or  garden  appertaining  thereto,  and  that  

will  not  suffer  any  such  liquors  sold  by  virtue  of  such  license  to  be  drank  in 
his  shop  or  house,  or  in  any  out-house,  yard  or  garden  belonging  thereto,  then 
this  obligation  to  be  void,  else  to  remain  in  force. 

 [I*  8.] 

 Ll.  S.] 

 [I**] 

Signed,  sealed  and  delivered 
in  the  presence  of 


County  of  ,  88,: 

On  this  day  of  ,  188   ,  before  me  personally  came  ,  to 

me  known  to  be  the  persons  described  in  and  who  executed  the  foregoing  bond, 
and  severally  acknowleged  that  they  executed  the  same  for  the  purposes  therein 
mentioned. 


County  of  ,  ss.: 

 ,  of  the  ,  in  said  county,  being  duly  sworn,  each  for  himself  doth 

depose  and  say,  that  he  is  worth  the  sum  of  $1,000  above  all  just  debts  and  lia- 


164 


FORMS. 


bilities,  and  that  deponents  reside  in  the  ,  county  of  ,  and  State  of 

New  York. 

Subscribed  and  sworn  to  before  me,  ) 
this  day  of  ,188   .  j 


We,  the  undersigned,  the  board  of  commissioners  of  excise  of  ,  do 

hereby  approve  of  the  security  to  the  above  bond. 
Dated  at  ,  this  day  of  ,188  . 


Commissioners  of  Excise. 


No.  8. 

Bond  for  Sale  of  Ale  and  Beer — Section  45. 

Know  all  men  by  these  presents :  That  we,  and  and  of 

 ,  county  of  ,  and  State  of  New  York,  are  held  are  firmly  bound 

unto  the  people  of  the  State  of  New  York,  in  the  penal  sum  of  $250,  to  be 
paid  to  the  said  people ;  for  which  payment,  well  and  truly  to  be  made,  we 
bind  ourselves,  our  and  each  of  our  heirs,  executors  and  administrators,  jointly 
and  severally,  firmly  by  these  presents. 

Sealed  with  our  seals,  and  dated  the  ......  day  of   ,188  . 

Whereas,  the  said  is  an  applicant  to  the  board  of  commissioners  of 

excise  of  for  a  license  to  sell  ale  and  beer  at  his  premises  ,  in  the 

 ,  according  to  the  provisions  of  an  act  entitled  "An  act  to  suppress 

intemperance  and  to  regulate  the  sale  of  intoxicating  liquors,"  passed  April  16, 
1857,  and  the  acts  supplemental  thereto  and  amendatory  thereof. 

Now,  therefore,  the  condition  of  this  obligation  is  such,  that,  if  during  the 

term  for  which  license  shall  be  granted,  will  not  suffer  

place  of  business  to  become  disorderly,  or  suffer  any  gambling  or  keep  any 

gambling  table  of  any  description  within  the  premises  so  kept  by  ,  and 

that  will  not  sell,  or  suffer  to  be  sold,  any  strong  or  spirituous  liquors  or 

wines,  except  ale  and  beer,  at  the  place  aforesaid,  or  in  any  out-house,  yard  or 
garden  appertaining  thereto,  then  this  obligation  to  be  void,  else  to  remain  in 
force. 

 CV«.J 

 [L.  S.] 

 [L.  S.] 

Signed,  sealed  and  delivered  ) 
in  presence  of  ) 


FORMS. 


165 


County  of  ,  ss.: 

On  this  day  of  ,  18b   ,  before  me  personally  came  ,  to 

me  known  to  be  the  individuals  described  in  and  who  executed  the  foregoing 
bond,  and  severally4aoknowledged  that  they  executed  the  same  for  the  uses  and 
purposes  therein  mentioned. 


The  same  justification  by  the  sureties,  and  approval  by  the  commissioners  of 
excise,  will  be  required  in  the  foregoing  bond  as  in  No.  6. 


No.  9. 

License  to  Sell  Strong  and  Spirituous  Liquors,  and  Wines,  Ale  and  Beer — Sections 

11,  12,  13  and  17. 

[License  expires  ,188   .    No  ] 

The  board  op  excise  of  ,  hereby  certifies  that  being  satisfied  that 

 ,  of  good  moral  character,  that  he  ha  sufficient  ability  to  keep  an  inn, 

tavern  or  hotel,  and  the  necessary  accommodations  to  entertain  travelers ;  and 
that  an  inn,  tavern  or  hotel  is  required  for  the  actual  accommodation  of  travelers 
at  the  place  where  such  applicant  resides  or  proposes  to  keep  the  same. 

Now,  therefore,  a  license  is  granted  to  ,  permitting  to  sell  and 

dispose  of  strong  and  spirituous  liquors,  wines,  ale  and  beer,  in  quantities  less  than 

five  gallons  at  a  time,  to  be  drank  on  the  premises  of  said   ,  at  , 

excepting  on  Sundays  or  election  days,  or  between  one  and  five  o'clock,  a.  m., 
and  shall  expire  on  the  first  Monday  of  May  next,*  pursuant  to  the  provisions 
of  the  act  of  the  legislature  of  the  State  of  New  York,  passed  April  11,  1870, 
entitled  "An  act  to  regulate  the  sale  of  intoxicating  liquors,"  and  of  the  acts 
amendatory  thereof. 

This  license  is  granted  and  accepted  upon  the  express  condition  that  the 
holder  shall  conform  to  the  requirements  of  the  said  acts  of  the  legislature,  and 
that  in  case  of  any  breach  of  such  condition  this  license  immediately  shall  be 
and  become  null  and  void. 

Witness  our  hands  this  day  of  ,  188  . 


Commissioners  of  Excise  of  

[This  license  must  be  kept  in  a  conspicuous  place.] 

*In  the  cities  of  New  York,  Brooklyn  and  Rochester  all  licenses  shall  expire  at  the  end 
of  one  year  from  the  time  they  shall  he  granted.   (Section  11.) 


166 


FORMS. 


No.  10. 

Store-keeper's  License  to  Sell  Strong  and  Spirituous  Liquors,  Wines,  Ale  and  Beer- 
Sections  11,  22  and  23. 

The  board  of  excise  of  hereby  certifies,  that  a  license  is  granted 

to  ,  permitting  to  sell  and  dispose  of  strong  and  spirituous  liquors, 

vines,  ale  and  beer,  in  quantities  less  than  five  gallons  at  a  time,  at   , 

excepting  on  Sundays  or  election  days,  or  between  one  and  five  o'clock  in  the 
morning;  but  not  to  be  drank  in  h  house  or  shop,  or  in  any  out-house,  yard 
or  garden  appertaining  thereto  or  connected  therewith,  and  shall  expire  on  the 
first  Monday  of  May  next,*  pursuant  to  the  provisions  of  the  act  of  the  legis- 
lature of  the  State  of  New  York,  passed  April  11,  1870,  entitled  "An  act  to 
regulate  the  sale  of  intoxicating  liquors." 

This  license  shall  not  be  deemed  to  authorize  the  sale  of  any  strong  or  spir- 
ituous liquors  or  wine  to  be  drank  in  the  house  or  shop  of  the  person  receiving 
the  same,  or  in  any  out-house,  yard  or  garden  appertaining  thereto,  or  con- 
nected therewith,  and  is  granted  and  accepted  upon  the  express  condition  that 
the  holder  shall  conform  to  the  requirements  of  the  said  act  of  the  legislature, 
and  that  in  case  of  any  breach  of  such  condition  this  license  immediately  shall 
be  and  become  null  and  void. 

Witness  our  hands  this  day  of  ,188  . 


Commissioners  of  Excise  of 
[This  license  must  be  kept  in  a  conspicuous  place.] 


No.  11. 

License  to  Sell  Ale  and  Beer  Only — Section  45. 

The  board  op  excise  of  hereby  certifies,  that  a  license  is  granted 

to  ,  permitting  to  sell  and  dispose  of  ale  and  beer  only,  in  quantities 

less  than  five  gallons  at  a  time,  at  ,  excepting  on  Sundays  or  election 

days,  or  between  one  and  five  o'clock,  a.  m.,  which  shall  expire  on  the  first 
Monday  of  May  next,*  pursuant  to  the  provisions  of  the  act  of  the  legislature 
of  the  State  of  New  York,  passed  April  16,  1857,  entitled  "An  act  to  suppress 
intemperance,  and  to  regulate  the  sale  of  intoxicating  liquors,"  as  amended  by 
chapter  856  of  the  Laws  of  1869. 

This  license  is  granted  and  accepted  upon  the  express  condition  that  the 


*  See  note  to  No.  9. 


FORMS. 


167 


holder  shall  conform  to  the  requirements  of  the  said  act  of  the  legislature,  and 
that  in  case  of  any  breach  of  such  condition  this  license  immediately  shall  be 
and  become  null  and  void. 
Witness  our  hands  this  day  of  ,188  . 


Commissioners  of  Excise  of 
[This  license  must  be  kept  in  a  conspicuous  place.] 


No.  12. 

Complaint  against  Hotel  Keeper  for  Failure  to  Keep  Requisite  Accomodations — 

Section  19. 

  COURT. 

John  Doe  as  sole  Overseer  of  the  Poor 

of  the  town  of  ,  county, 

N.  Y., 

against 
Richard  Roe. 

Plaintiff  complains  of  the  defendant  and  alleges : 

I.  That  the  plaintiff  is  the  sole  and  only  duly  elected,  qualified  and  acting 

overseer  of  the  poor  in  and  for  the  town  of  ,  in  the  county  of  and 

State  of  New  York. 

II.  That  the  defendant  is  a  duly  licensed  inn,  tavern  or  hotel  keeper,  under 
the  provisions  of  chapter  628  of  the  Laws  of  1857,  entitled  "An  act  to  suppress 
intemperance,  and  to  regulate  the  sale  of  intoxicating  liquors,"  and  the  laws 
supplementary  thereto  and  amendatory  thereof.  That  as  such  inn,  tavern  or 
hotel  keeper  he  fails  and  neglects  to  keep  in  his  said  house,  inn,  tavern  or  hotel, 
for  the  accommodation  of  travelers  thereat,  the  articles  required  by  section  8  of 
said  act,  one  or  more  of  them  as  therein  enumerated,  to  wit:  "At  least  three 
spare  beds  for  his  guests,  with  good  and  sufficient  bedding,  good  and  sufficient 
stabling  and  provender  of  hay  in  winter  (or  hay  or  pasture  in  the  summer),  and 
grain  for  four  horses  or  other  cattle  more  than  his  own  stock."  And  especially 
has  the  defendant  failed  and  neglected,  and  now  fails  and  neglects,  to  keep  in 
his  said  house  for  the  accommodation  of  travelers  *  [here  recite  any  specific 
article  which  the  defendant  fails  to  keep  as  required  by  section  19]. 

•The  practitioner  In  pleading  under  any  section  is  referred  to  22  Hun,  274;  5  id.,  564;  25 
Id.,  195;  62  How.,  313;  which  will  prompt  him  to  observe  great  care  in  making  his  allega- 
tions specific. 


168 


FORMS. 


III.  That  by  reason  of  such  default  in  not  keeping  such  articles,  or  either  of 
them,  the  defendant  as  such  inn,  tavern  or  hotel  keeper  has  forfeited  to  the 
plaintiff  as  such  overseer  of  the  poor  the  penalty  of  ten  dollars,  for  the  use  of 
the  poor,  in  accordance  with  the  provisions  of  sections  8  and  22  of  said  act  as 
amended.  Plaintiff,  therefore,  demands  judgment  against  the  defendant  for 
ten  dollars,  with  costs  of  action. 

A.  B.,  Plaintiff's  Attorney. 


No.  13. 

Complaint  against  a  Hotel  Keeper \  for  failure  to  put  up  and  keep  up  a  sign — 

Section  20. 

[Title  of  cause.] 

I.  Same  as  in  No.  12. 

II.  That  the  defendant,  on  the  day  of  ,  188   ,  was  duly  licensed 

to  keep  an  inn,  tavern  or  hotel  in  the  town  of  . . .    . ,  county,  and  State 

of  New  York,  under  the  excise  laws  of  this  State,  and  pursuant  to  the  pro- 
visions of  an  act  entitled  "An  act  to  regulate  the  sale  of  intoxicating  liquors," 
passed  April  11,  1870,  chapter  175;  and  has  ever  since  continued  to  keep  an 
inn,  tavern  or  hotel  in  said  town,  under  and  by  virtue  of  such  hotel  keeper's 
license  as  aforesaid. 

III.  That  the  defendant  failed,  within  thirty  days  after  obtaining  his  lieense 
as  aforesaid,  to  put  up  a  proper  sign  on  or  adjacent  to  the  front  of  his  said 
house,  with  his  name  thereon,  indicating  that  he  keeps  an  inn,  tavern  or  hotel, 
contrary  to  section  9,  chapter  628  of  the  laws  of  1857,  and  has  ever  since 
neglected,  and  still  neglects,  to  put  up  and  keep  up  such  sign,  in  all  for  the 
period  of  ten  months  from  the  day  of  ,  188  . 

IV.  That  the  defendant  thereby  became,  and  is  indebted,  to  this  plaintiff  as 
such  [overseer  of  the  poor,  in  the  penalty  and  sum  of  ten  dollars  for  each 
month's  neglect  to  put  up  and  keep  up  such  sign,  to  wit :  the  period  of  ten 
months,  whereby  this  action  has  accrued  according  to  the  provisions  of  chap- 
ter 628,  of  the  laws  of  1857,  for  the  aggregate  sum  of  $100,  for  which  sum 
plaintiff  demands  judgment  besides  costs  of  action. 

A.  B.,  Plaintiff's  Attorney. 


No.  14. 

Complaint  against  Hotel  Keeper  for  Taking  Security  for  Liquors  Trusted — 

Section  21. 

[Title  of  cause.] 

I.  Same  as  in  No.  12. 

II.  That  on  the  day  of  ,  188   ,  the  defendant  being  an  inn, 

tavern  or  hotel  keeper  in  the  town  of  ,  in  the  county  of  ,  duly 


FORMS. 


169 


licensed  as  such  under  and  by  virtue  of  the  excise  laws  of  this  State,  did  trust 
John  Doe,  who  was  not  a  lodger  in  defendant's  said  hotel,  in  the  sum  of  ten 
dollars,  for  strong  or  spirituous  liquors,  wines,  ale  and  beer,  sold  by  the  said 
defendant  to  the  said  John  Doe,  and  especially  did  the  defendant,  on  said  day, 
trust  said  John  Doe  for  bourbon  whiskey,  in  said  sum  of  ten  dollars,  and  did 
take  a  chattel  mortgage  (or  other  security)  upon  certain  personal  property  of 
said  John  Doe,  as  security  for  said  debt  incurred  as  aforesaid,  with  intent  to 
evade  the  provisions  of  section  10,  chapter  628  of  the  Laws  of  1857,  and  the 
laws  amendatory  thereof. 

III.  That  the  defendant  thereby,  and  by  reason  of  the  facts  aforesaid,  did 
forfeit  to  the  plaintiff  double  the  sum  intended  to  be  secured  by  the  taking 
of  such  security,  to  wit,  the  sum  of  twenty  dollars,  according  to  the  provisions 
of  chapter  628  of  the  Laws  of  1857,  for  which  sum  plaintiff  demands  judg- 
ment, besides  costs  of  action. 

A.  B.,  Plaintiff's  Attorney. 


No.  15. 

Complaint  for  Selling  Liquors  in  Quaatiiies  less  than  Jive  Gallons  at  a  time  without 
a  License — Section  24. 

[Title  of  cause.  ] 

I.  Same  as  in  No.  12. 

II.  That  the  defendant,  on  the  first  day  of  July,  188  ,  and  on  each  and 
every  day  between  and  including  the  first  day  of  July,  188  ,  and  the  fifth  day 
of  July,  188  ,  sold  or  caused  to  be  sold,  by  his  duly  authorized  agents,  strong 
and  spirituous  liquors,  wines,  ale  and  beer,  at  his  house  or  shop  in  the  town  of 

 ,  county  of  ,  in  quantities  less  than  five  gallons  at  a  time,  without 

having  a  license  therefor,  granted  as  provided  by  chapter  175  of  the  Laws  of 
1870,  and  the  acts  amendatory  thereof;  and  especially  did  the  said  defendant 
on  the  days  aforesaid,  and  each  of  them,  sell  brandy  to  one  John  Doe  in  quan- 
tities less  five  gallons  at  a  time,  without  having  a  license  therefor  as  aforesaid. * 

III.  That  thereby  the  defendant  became  and  is  indebted  to  this  plaintiff  in 
the  penalty  and  sum  of  fifty  dollars,  for  each  and  every  act  of  selling  liquors 
as  aforesaid,  whereby  this  action  accrued  according  to  the  provisions  of  sections 
13  and  22  of  chapter  628  of  the  Laws  of  1857,  and  the  amendatory  act  of  1869, 

for  the  aggregate  sum  or  amount  of  $  ,  for  which  sum  plaintiff  demands 

judgment,  besides  costs  of  action. 

A.  B.,  Plaintiff's  Attorney 

*  See  note  to  No.  12. 

Note.— Under  those  sections  giving  a  penalty  or  forfeiture  for  each  offense,  when  it  p& 
desired  to  prosecute  for  more  than  one  penalty  or  forfeiture  in  the  same  action,  a  new  cause 
of  action  should  be  inserted  stating  the  facts  constituting  each  offense  separately,  in  sub- 
stance like  II  in  the  above  complaint,  simply  changing  dates,  kinds  of  liquor,  etc  ,  to  con- 
form to  the  facts.  Ill  covers  any  number  of  counts.  It  will  be  readily  understood  that  a 
complaint  must  be  formu'ated  to  fit  the  individual  circumstances  of  each  case. 


170 


FORMS. 


No.  16. 

Complaint  for  Selling  Liquor  to  be  Drank  on  the  Premises  without  a  License — 

Section  25. 

[Title  of  cause.] 

I.  Same  as  No.  12. 

II.  That  the  defendant  being  a  resident  of  in  the  county  of  , 

did,  at  his  house,  shop  or  hotel  [here  specify  the  location  by  street  and  number, 

or  otherwise]  on  each  and  every  day  between  the  day  of  ,  188  , 

and  the  day  of  ,188   ,  sell  strong  and  spirituous  liquors,  wines, 

ale  and  beer,  to  be  drank  in  his  said  house  or  shop,  or  in  an  out-house,  yard  or 
garden  appertaining  thereto,  or  one  of  them,  without  having  a  license  therefor 
as  provided  by  the  act  entitled  "An  act  regulating  the  sale  of  intoxicating 
liquors,"  passed  April  11,  1870,  and  especially  did  the  said  defendant,  on  each 
of  the  days  aforesaid,  seM  gin  to  one  John  Doe  to  be  drank  in  his  said  house, 
without  having  a  license  therefor  as  aforesaid. 

III.  That  thereby  the  defendant  became  indebted  to  said  plaintiff  in  the 
penalty  and  sum  of  fifty  dollars  for  each*  of  such  acts  of  selling  liquors  without 
a  license,  whereby  this  action  accrued  according  to  sections  14  and  22  of  chapter 
628  of  the  Laws  of  1857,  for  the  aggregate  amount  or  sum  of  $   Where- 
fore plaintiff  demands  judgment  against  the  defendant  for  the  sum  of  $  , 

besides  costs  of  action. 

A.  B. ,  Plaintiff's  Attorney. 


No.  17. 

Complaint  against  an  Officer  for  Failure  to  Arrest  a  Person  Intoxicated  in  a  Public 

Place— Section  28. 

[Title  of  cause.] 

I.  Same  as  in  No.  12. 

II.  That  the  defendant  was,  at  the  time  hereinafter  stated,  a  [here  state 
whether  sheriff,  under-sheriff,  deputy-sheriff,  constable,  marshal,  policeman  or 
officer  of  police],  duly  [elected  or  appointed]  and  qualified  in  and  for  the 

[town  and  county].    That  on  the    day  of   ,  188   ,  was 

intoxicated  in  the  public  streets  in  the  village  of  ,  said  county,  and  said 

defendant  found  said  person  so  intoxicated  at  said  time  and  in  said  place, 
and  neglected  and  refused  to  apprehend  and  arrest  said  person  so  found  intoxi- 
cated by  him,  or  to  cause  him  to  be  apprehended  and  arrested,  and  neglected 
and  refused  to  take  such  intoxicated  person,  or  cause  him  to  be  so  taken,  before 
a  magistrate  of  the  [city  or  town]  where  said  officer  resided,  as  required  by 
section  17,  chapter  628  of  the  Laws  of  1857,  as  amended  by  section  2  of  chapter 
856  of  the  Laws  of  1869. 


*  See  pages  Ki6  and  107,  and  note  to  No.  15. 


FORMS. 


171 


III.  That  thereby  the  defendant  became  and  is  indebted  to  this  plaintiff  in 
the  penalty  and  sum  of  fifty  dollars,  and  full  costs  of  suit,  whereby  this  action 
accrued  according  to  the  provisions  of  said  statute  above  mentioned,  and  for 
which  sum  plaintiff  demands  judgment,  besides  costs. 

A.  B.,  Plaintiff's  Attorney. 


No.  18. 

Complaint  Against  a  Magistrate  for  Refusal  to  Entertain  a  Complaint — Section  28. 
[Title  of  cause.] 

I.  Same  as  in  No.  12. 

II.  That  on  the  day  of  ,188   ,  John  Doe,  a  constable  [or  other 

officer  enumerated  in  No.  17],  of  the  town  [or  city]  of  ,  in  the  county 

of  ,  apprehended  and  arrested  ,  who  was  found  intoxicated  in  a 

public  place,  to  wit:  Main  street,  in  the  said  village  of  ,  and  took  said 

person  before  Esq.,  a  justice  of  the  peace  in  and  for  the  town  of  

said  county,  and  made  complaint  before  said  justice,  that  he  had  found  said 

 intoxicated  in  a  public  place  in  said  town,  but  that  said  refused 

to  entertain  such  complaint,  and  make  examination  into  said  charge  of  drunk- 
enness in  a  public  place,  as  required  by  section  17,  chapter  628  of  the  Laws  of 
1857,  as  amended  by  section  2,  chapter  856  of  the  Laws  of  1869. 

III.  Same  as  in  No.  17. 


No.  19. 

*  Complaint  for  Selling  or  Giving  Liquor  to  Intoxicated  Person — Section  29. 
fTitle  of  cause.] 

I.  Same  as  in  No.  12. 

II.  That  the  defendant,  on  the  1st,  2d  and  3d  days  of  July,  188  ,  and  on 
each  and  every  of  such  days,  sold  or  gave  away  strong  and  spirituous  liquors, 
wines,  ale  and  beer,  and  especially  brandy,  to  John  Doe,  a  person  then  being 
intoxicated,  or  suffered  such  liquor  or  liquors  to  be  sold  or  given  away  under 
his  direction  or  authority,  to  such  intoxicated  person,  contrary  to  the  provisions 
of  section  18  of  the  act  entitled  "An  act  to  suppress  intemperance,  and  to  regu- 
late the  sale  of  intoxicating  liquors,"  passed  April  16,  1857. 

III.  That  by  reason  of  such  acts  as  aforesaid,  the  defendant  has  forfeited  to 
the  plaintiff  as  such  overseer  of  the  poor  the  penalty  of  twenty-five  dollars  for 
each  of  the  times  he  so  sold,  or  caused  to  be  sold,  the  liquor  as  aforesaid, 

*  See  note  to  No.  15. 


172 


FORMS. 


amounting  in  the  aggregate  to  the  sum  of  $  ,  for  which  sum  plaintiff  de- 
mands judgment,  besides  costs  of  action. 

A.  B.,  Plaintiff's  Attorney. 


No.  20. 

Complaint  to  Oversee)'  of  the  Poor  for  a  Violation,  and  Requiring  him  to  Prosecute 
for  tlie  Penalty  Included — Section  41. 

To  ,  Overseer  of  the  Poor  of  the  toicn  of  ,  county,  N.  T.: 

Sir — I  hereby  make  complaint  against  C.  D.,  and  charge  that  he,  at  his  house 

or  hotel  in  the  town  of   ,  county  of  ,  on  the  day  of  , 

188  ,  and  on  each  and  every  day  of  said  month,  sold  strong  and  spirituous 
liquors,  wines,  ale  and  beer,  openly  to  various  and  divers  persons,  and  especially 

did  he,  on  said  day  of  sell  [or  give]  brandy  and  gin  to  John  Doe 

and  Richard  Roe  and  to  each  of  them,  to  be  drank  in  his  said  house  [out- 
house, yard,  etc.],  without  having  a  license  therefor  as  provided  by  chapter  175- 
of  the  Laws  of  1870,  and  I  herewith  furnish  reasonable  proof  of  such  violation,, 
and  demand  that  you,  as  such  overseer  of  the  poor  of  said  town,  prosecute  said 
C.  D.,  for  the  penalty  prescribed  therefor  by  section  14  of  chapter  628  of  the 
Laws  of  1857,  for  selling  intoxicating  liquors  to  be  drank  on  his  premises  without 
having  a  license  therefor.* 

Dated  ,188  . 

A.  B. 


No.  21. 

Proof  to  be  submitted  icith  Xo.  20 — Section  41. 

County  of  ,  ss.: 

E.  F.  and  G.  H. ,  each  being  severally  duly  sworn,  depose  and  say,  that  on 

the  day  of  ,  188   ,  they  were  in  the  bar-room  of  the  hotel  owned 

and  kept  by  C.  D.,  in  the  town  of  ,  .county  of  ,  and  while  so  there 

saw  said  C.  D.  sell  brandy  and  gin  to  John  Doe  and  Richard  Roe,  and  that 
each  of  said  persons  drank  said  liquors  so  purchased  of  C.  D.  at  said  time  and 
place. 

Subscribed  and  sworn  to  before  me,  ) 
this  day  of   ,188    .  j 


*  This  complaint  can  be  used  where  any  penalty  is  given  to  the  overseer  by  substituting* 
the  proper  allegations,  and  alluding  to  the  appropriate  statute. 


FORMS. 


173 


No.  22. 

Complaint  against  Hotel  Keeper  for  Selling  Liquors  to  an  Indian,  Apprentice  or 
Minor  Under  Eighteen  Tears  of  Age — Section  26. 
..'   COURT. 


John  Doe 

agst, 
Richard  Roe. 


Plaintiff  complains  of  the  defendant  and  alleges: 

I.  That  plaintiff  is  the  [master,  mistress,  father,  mother  or  guardian]  of 
 [an  Indian,  apprentice  or  a  minor  under  the  age  of  eighteen  years]. 

II.  That  the  defendant  is  an  inn,  tavern  or  hotel  keeper,  duly  licensed  to  sell 
strong  and  spirituous  liquors,  wines,  ale  and  beer,  in  and  for  the  town  of 

 ,    county,  K  Y.,  under  chapter  175  of  the  Laws  of  1870,  as 

amended  by  chapter  549  of  the  Laws  of  1873.    That  on  each  and  every  day 

between  and  including  the   day  of  July,  188    ,  and  the  day  of 

July,  188  ,  and  while  so  keeping  said  inn,  tavern  or  hotel  the  defendant  either 
personally,  or  by  his  wife,  servant  or  employee  or  other  agent,  knowing  or 

having  reason  to  believe  that  said  was  the  [apprentice  or,  etc.,]  of  the 

plaintiff,  without  th§e  consent  of  the  plaintiff,  sold  or  gave  away  to  such 
[apprentice  or,  etc.,] -strong  or  spirituous  liquors,  wines,  ale  and  beer,  and 
especially  did  the  defendant  sell,  on  each  of  the  days  aforesaid,  brandy  to  said 

 without  the  consent  of  this  plaintiff,*  contrary  to  section  15  of  chapter 

628  of  the  Laws  of  1857,  as  amended  by  chapter  420  of  the  Laws  of  1870. 

III.  That  thereby  the  defendant  has  forfeited  and  become  indebted  to  this 
plaintiff  in  the  sum  of  ten  dollars  for  each  and  every  time  he  so  sold  said  liquor 
or  liquors,  whereby  this  action  accrued,  according  to  the  provisions  of  said 

statutes,  amounting  in  the  aggregate  to  the  sum  of  $  ,  for  which  sum 

plaintiff  demands  judgment,  besides  costs  of  action. 

A.  B.,  Plaintiff's  Attorney. 


No.  23. 

t  Complaint  by  Wife  or  Husband  against  Dealer  in  Intoxicating  Liquors  for  Illegally 
Selling  to  Plaintiff's  Husband  or  Wife — Section  30. 
  COURT. 


Mary  Ann  Doe 

agst. 
Richard  Roe. 


Plaintiff  complains  of  the  defendant  and  alleges : 


r  See  notes  to  Nos.  12  and  15.  f  See  note  to  No.  15. 


174 


FORMS. 


I.  That  plaintiff  is  a  married  woman,  and  the  wife  of  A.  B.,  who  is  an 
habitual  drinker  of  intoxicating  liquors. 

II.  That  the  defendant,  who  is  a  dealer  in  intoxicating  liquors  in  the  town  of 

 ,  county  of  ,  was  duly  notified,  in  writing,  by  [name  and  office  of 

magistrate,  or  overseer  of  the  poor]  of  the  town  of  ,  that  said  A.  B.,  the 

husband  of  plaintiff,  was  an  habitual  drinker  of  intoxicating  liquor,  and  was  also 
forbidden  thereby  to  sell  or  give  away  any  such  liquors  to  him  for  the  term  of 
six  months  from  the  time  of  the  giving  of  such  notice,  in  pursuance  of  section 
19  of  chapter  628  of  the  Laws  of  1857. 

III.  That  on  each  and  every  day  from  and  including  the    day  of 

 ,188   ,  to  the  day  of  ,188   ,  the  defendant  sold  or  gave 

away  intoxicating  liquors,  wines,  ale  and  beer  to  said  A.  B.,  and  especially  did 
he  sell  said  A.  B.  brandy  on  each  of  said  days,  after  having  been  notified  and 
forbidden,  as  aforesaid,  in  violation  of  said  statute. 

IV.  That  thereby  the  defendant  became  and  is  indebted  to  this  plaintiff  in 
the  penalty  and  sum  of  fifty  dollars  for  each  act  of  selling  or  giving  away  of 
liquors,  as  aforesaid,  whereby  this  action  accrued  according  to  the  provisions 

of  said  statute,  for  the  aggregate  amount  or  sum  of  $  ,  f or  which  sum 

plaintiff  demands  judgment,  beside  costs  of  action. 

A.  B.,  Plaintiff's  Attorney. 


No.  24. 

*  Complaint  by  Wife  that  Tier  Husband  is  an  Habitual  Drinker  of  Intoxicating 
Liquors — Section  30. 

County  of  ,  ss.  : 

Mary  Ann  Doe,  of  the  town  of  ,  being  duly  sworn,  says,  that  her  hus- 
band, John  Doe,  is  an  habitual  drinker  of  intoxicating  liquors,  and  [here  give 
definite  statement  as  to  his  habits],  and  deponent  hereby  makes  complaint,  on 
her  information  and  belief,  that  her  said  husband  procures  the  liquors  drank 

by  him  of  the  following  named  dealers  in  intoxicating  liquors:  ,  and 

hereby  requires  you  as  [magistrate  or  overseer  of  the  poor]  of  the  town  of 

 to  notify  and  forbid  said  dealers  not  to  sell  or  give  away  intoxicating 

liquors  to  said  John  Doe,  in  accordance  with  the  provisions  of  section  19  of 
chapter  628  of  the  Laws  of  1857. 
Subscribed  and  sworn  to  before  me,  ) 

this  day  of  188   .  ) 


*  The  same  complaint  and  proof  Is  required  in  the  case  of  wife,  parent  or  child  under 
section  30. 


FORMS. 


175 


No.  25. 

Notice  to  Dealers  Not  to  Sell  to  an  Habitual  Drinker — Section  30. 
To  ; 

Take  notice,  that  complaint  has  been  duly  made  to  me  [overseer  or  magis- 
trate] in  accordance  with  section  19,  chapter  628  of  the  Laws  of  1857,  that 
John  Doe  is  an  habitual  drinker  of  intoxicating  liquors.  You  are,  therefore, 
hereby  forbidden  to  sell  or  give  away  such  liquors  to  said  John  Doe  for  the 
term  of  six  months  from  the  service  of  this  notice  upon  you,  under  a  penalty 
of  fifty  dollars,  and  costs  of  suit,  for  each  and  every  disobedience  of  this  order. 

Dated  ,188  . 

Overseer,  etc.,  or  Magistrate,  etc. 


No.  26. 

Complaint  on  Hotel  Keeper's  Bond — Sections  18  and  35. 
SUPREME  COURT— County  

The  People  of  the  State  of  New 
York 
against 
A.  B.,  C.  D.  and  E.  F. 

The  plaintiffs,  complaining  of  the  defendants  allege  on  information  and 
belief— 

I.  That  the  defendant  A.  B.,  is  a  licensed  hotel  keeper  under  chapter  175  of 
the  laws  of  1870,  and  its  amendments,  residing  and  keeping  hotel  in  the  village 
of  ,  at  [street  and  number]. 

II.  That  said  village  is  a  municipal  corporation  under  the  laws  of  this  State 
[omit  II  if  the  action  is  not  prosecuted  by  the  trustees  of  a  village]. 

III.  That  on  or  about  the  first  Monday  of  May,  183  ,  the  defendant  A.  B., 
duly  made  application  for,  and  received  a  hotel  keeper's  license  under  said 
statute,  to  sell  strong  and  spirituous  liquors,  wines,  ale  and  beer,  to  be  drank 
in  his  inn,  tavern  or  hotel,  from  the  board  of  commissioners  of  excise  of  the 
town  of  ,  in  which  such  village  is  situate. 

IV.  That  previous  to  the  granting  of  such  license  to  said  A.  B.,  he  made, 
executed  and  delivered  to  said  board  of  commissioners  of  excise  the  bond  re- 
quired to  be  given  by  an  inn,  tavern  or  hotel  keeper,  by  section  7  of  chapter 

628  of  the  Laws  of  1857,  which  bond  bears  date  May  ,188   ,  and  the 

defendants,  C.  D.  and  E.  F.,  duly  became  sureties  upon  said  bond,  and  justified 
as  required  by  law,  and  the  same  was  thereupon  duly  delivered  to  said  board 
of  commissioners  of  excise  of  said  town,  and  they  thereupon  duly  approved  of 
the  sureties  to  said  bond,  and  the  said  license  was  thereupon  duly  issued  as 


176 


FORMS. 


aforesaid.  That  the  following  is  a  copy  of  said  bond,  acknowledgment,  justi- 
fication and  approval  [here  insert  copy  of  bond]. 

That  thereupon  the  said  A.  B.  became  a  duly  licensed  inn,  tavern  or  hotel 
keeper  in  said  town,  and  as  such  authorized  to  sell  strong  and  spirituous  liquors, 
wines,  ale  and  beer,  under  the  terms  of  said  license,  but  not  otherwise. 

V.  That  said  A.  B.  notwithstanding  the  restrictions  contained  in  said  bond, 
at  divers  times,  and  on  each  and  every  day  subsequent  to  the  granting 
and  delivery  of  such  license  to  him,  caused  a  breach  of  the  conditions  of 
said  bond,  and  did  keep  a  gaming  table  within  his  inn,  tavern  or  hotel,  so 
kept  by  him,  and  did  suffer  gambling  within  his  inn,  tavern  or  hotel,  and  did 
keep  therein  a  billiard  table  or  gaming  table,  and  that  his  guests  and  others 
used  it  under  a  rule  that  the  losing  party  of  each  game  should  pay  the  said 
A.  B.  for  the  use  of  the  table  a  specific  sum  of  money,  and  furnished  lights 
and  attendants  at  said  table;  that  he  also  kept,  during  said  time,  a  gaming 
table  within  said  hotel,  on  which  was  played  a  game  called  pin  pool,  for  the 
use  of  those  who  frequented  said  hotel,  and  upon  which  gaming  was  allowed 
and  permitted  by  said  A.  B. ,  the  losing  party  paying  for  drinks  and  entertain- 
ment furnished  by  said  A.  B.,  who  permitted  gambling  to  be  done  on  said 
table,  and  did  also  suffer  gambling  to  be  done  in  his  said  hotel,  with  dice,  and 
did  suffer  dice  to  be  shaken  for  the  drinks  and  cigars  therein,  the  losing  party 
to  pay  therefor;  and  did  suffer  said  hotel  to  be  disorderly  within  the  intent  an 
meaning  of  the  statute  under  which  said  bond  was  given,  during  the  whole 
time  that  elapsed  between  the  time  of  the  granting  of  such  license  and  the 
commencement  of  this  action,  and  the  conditions  of  said  bond  thereupon 
became  and  were  broken  on  each  and  every  day  during  said  time. 

VI.  Plaintiff  further  shows,  that  at  a  meeting  of  the  board  of  trustees  of  said 

village  [board  of  commissioners  of  excise,  or  supervisor],  held  on  the  day 

of  ,  188  ,  it  was  resolved  by  said  board,  that  an  action  should  be  com- 
menced in  pursuance  of  section  24  of  chapter  628  of  the  Laws  of  1857,  againstt 
the  said  defendants  upon  said  bond  to  recover  the  penalty  or  forfeiture  given 
upon  a  breach  thereof,  and  this  action  is  prosecuted  in  behalf  of,  and  by  said 
board  for  that  purpose,  in  pursuance  of  their  duty  under  the  statute. 

VII.  That  by  reason  of  the  facts  hereinbefore  set  forth,  an  action  has  accrued 
to  the  plaintiffs  upon  said  bond,  and  the  defendants  are  indebted  to  the  plain- 
tiffs thereon,  jointly  and  severally,  according  to  the  terms  and  conditions 
thereof,  by  reason  of  such  breach,  in  the  sum  of  $250,  for  which  sum  plaintiffs 
demand  judgment  besides  costs  of  action. 


*Dis't  Atfy  of  County,  AtVy  for  Plaintiffs. 

*  See  section  1962,  Code  of  Civil  Procedure. 
[This  complaint  must  be  verified  by  one  of  the  parties  bringing  the  action.] 


FORMS. 


177 


No.  27. 

Complaint  Under  the  Civil  Damage  Act — Section  69. 
  COURT. 


against 
C.  D.  and  E.  F. 

Plaintiff  complains  of  the  defendants  and  alleges: 

I.  That  she  is  and  has  been,  since  the  day  of  ,188   ,  the  wife 

of  A.  B.,  and  has  ever  since  her  marriage  to  him  lived  with  and  been  entirely 
dependant  upon  her  said  husband  for  her  means  of  support,  and  was  up  to  the 
4th  day  of  July,  1883,  supported  and  provided  for  by  him.  That  from  the  time 
of  plaintiff's  marriage  up  to  said  July  fourth  the  said  A.  B.  had  been  entirely 
sober  and  industrious ;  but  that  previous  to  the  date  of  their  said  marriage  he 
had  been  in  the  habit  of  using  intoxicating  liquors  to  excess,  all  of  which  was 
well  known  to  the  defendants. 

II.  That  defendant  C.  D.  is  the  keeper  of  a  hotel  in  the  town  of  , 

county  of  ,  called  the  house,  and  has  been  for  the  last  

months.  That  the  same  was  and  is  leased  by  said  C.  D.  of  the  defendant  E.  F., 
with  full  knowledge,  on  the  part  of  said  lessor,  that  the  same  was  to  be  used 
and  kept  for  a  hotel  in  which  intoxicating  liquors  were  to  be  sold. 

III.  That  on  the  4th  day  of  July,  1883,  the  said  A.  B. ,  plaintiff's  husband  as 
aforesaid,  went  to  defendant's  said  hotel  and  then  and  there  commenced  to 
drink  intoxicating  liquors  at  the  bar  of  said  C.  D.,  which  liquors  were  sold 
or  given  to  said  A.  B.  by  said  C.  D.,  or  his  duly  authorized  agent  or  bar-tender. 
That  plaintiff  thereupon  forbade  the  said  C.  D.  to  sell  or  give  her  said  husband 
any  more  intoxicating  liquors ;  but  he  then  and  thereupon  insolently  ordered 
plaintiff  out  of  doors,  and  continued  to  sell  or  give  to  plaintiff's  said  husband 
intoxicating  liquors,  and  especially  did  he  give  or  sell  to,  and  to  be  drank  by 
him,  whiskey,  gin  and  strong  beer,  which  caused  her  said  husband  to  become 
intoxicated  and  unable  to  manage  and  control  his  conduct  or  actions,  and  he 
thereupon,  on  said  July  4,  1883,  by  reason  of  such  intoxication,  wandered 
aimlessly  out  into  the  night  and  fell  and  lay  upon  the  railroad  track  in  the  vil. 

lage  of  and  was  there  run  over  by  a  train  of  cars  and  his  leg  was  broken 

and  he  was  otherwise  greatly  injured  and  mangled  by  said  cars  and  he  became 
thereby  totally  and  forever  disabled,  as  plaintiff  verily  believes,  for  the  per- 
formance of  any  manual  labor,  and  upon  which  she  is  dependent  for  support, 
and  plaintiff  has  been  by  reason  thereof  reduced  to  great  want  and  destitution. 

IV.  That  by  reason  of  the  facts  aforesaid,  plaintiff  has  been  deprived  entirely 

of  her  means  of  support,  and  has  suffered  damage  in  the  sum  of  $  ,  for 

which,  and  for  exemplary  damages,  she  is  entitled  to  recover  of  the  defendants 
12 


178 


I 

FORMS. 


in  accordance  with  the  provisions  of  chapter  646  of  the  Laws  of  1873.  "Where- 
fore the  plaintiff  demands  judgment  against  the  above  named  defendants  for 
the  sum  of  $  ,  besides  costs  of  action. 

X.  Y.,  Plaintiff's  Attorney. 


Informations  to  be  Presented  to  Magistrates  Alleg- 
ing the  Commission  of  Various  Misdemeanors  under 
the  Excise  Laws. 

No.  28. 

For  Selling  to  an  Indian  or  Minor  under  Fourteen — Section  26. 
 County,  88.: 

A.  B.,  being  duly  sworn,  deposes  and  says,  that  he  resides  in   ,  said 

county;  that  on  the  day  of  ,  188   ,  in  said  town,  one  C.  D.  did 

unlawfully  and  knowingly w  violate  section  15  of  chapter  628  of  the  Laws  of 
1857,  as  amended  by  chapter  420  of  the  Laws  of  1877  of  the  State  of  New  York, 
and  that  he  did  on  that  day,  personally  [or  by  his  wife,  servant,  etc.],f  sell  or 
give  away  strong  and  spirituous  liquors,  to  wit:  whiskey,  to  one  E.  F.,  an 

Indian,  at  his  house  or  shop  in  the  said  town  of   ,  said  county  and  State. 

[Or  from  the  f]  sell  strong  and  spirituous  liquors,  to  wit:  brandy,  to  G.  H.,  a 
minor  under  the  age  of  fourteen  years,  knowing  or  having  reason  to  believe 
such  minor  to  be  under  such  age. 
Subscribed  and  sworn  to  before  me,  ) 
this  day  of  ,188   .  ) 


No.  29. 

For  Public  Intoxication — Section  28. 

 County,  ss.: 

A.  B.,  being  duly  sworn,  deposes  and  says,  that  he  is  a  constable  in  and  for 

the  town  of   ,  said  county;  that  on  the  day  of  ,188    ,  he 

found  C.  D.  intoxicated  in  a  public  street  or  place  in  said  town,  to  wit:  in  the 

post-office  in  the  village  of  ,  in  said  town,  contrary  to  the  provisions  of 

section  17  of  chapter  628  of  the  Laws  of  1857,  as  amended  by  chapter  856  of  the 
Laws  of  1869. 

Subscribed,  etc. 


No.  30. 

For  Selling  to  a  Person  Guilty  of  Habitual  Drunkenness — Section  31. 
[As  in  form  No.  28  to  the  *,  continuing]  violate  section  20,  chapter  628  of 


FORMS. 


179 


the  Laws  of  1857,  by  selling  strong  and  spirituous  liquors,  to  wit:  whiskey  and 
beer  to  E.  F.,  a  person  guilty  of  habitual  drunkenness.    [Or  to  E.  F.,  the  hus- 
band of  G.  F.,  to  whom  the  said  C.  D.  had  been  forbidden  to  6ell  intoxicating 
liquors,  in  pursuance  of  section  20  of  chapter  G28  of  the  Laws  of  1857.] 
Subscribed,  etc. 


No.  31. 

For  Selling  to  a  Pauper  or  Inmate  of  Poor-7iouse — Section  31. 

[As  in  form  No.  28  to  the*  continuing]  violate  section  20  of  chapter  628  of 
the  Laws  of  1857,  by  knowingly  selling  strong  and  spirituous  liquors,  to  wit: 
whiskey  and  rum  to  E.  F. ,  a  pauper  and  inmate  of  a  poor-house.  That  at  the 
time  of  such  sale  the  said  C  D.  was  an  inn,  tavern  or  hotel  keeper. 

Subscribed,  etc. 


No.  32. 

For  Selling  on  Sunday  or  Election  Day — Section  32 
[As  in  form  No.  28  to  the  *,  continuing]  violate  section  21,  chapter  628  of  the 
Laws  of  1857,  as  amended  by  chapter  549  of  the  Laws  of  1873,  by  selling  or 
giving  away  intoxicating  liquors,  to  wit,  whiskey  and  beer  to  E.  F.  and  G.  H., 

and  other  persons  as  a  beverage.    That  said  day  of  ,  188   ,  was 

Sunday  [or  was  a  day  on  which  a  general  or  special  eleetion  was  held,  and  said 
sale  was  made  within  one-quarter  of  a  mile  of  the  poll  of  such  election]. 
Subscribed,  etc. 


No.  33. 

For  Adulterating  or  Selling  Adulterated  Imported  Liquors — Section  40. 

[As  in  form  No.  28  to  the  *,  continuing]  violate  section  29  chapter  628  of  the 
Laws  of  1857,  and  that  he  did  on  that  day,  and  on  several  other  days  during 
said  month,  adulterate  imported  or  other  intoxicating  liquors  with  poisonous 
or  deleterious  drugs  or  mixtures,  or  sold  the  same,  in  this,  to  wit  [here  recite 
the  facts  as  near  as  ascertainable]  :  or  [that  he  knowingly  imported  or  sold,  on 
said  day,  intoxicating  liquors  or  wines  adulterated  with  poisonous  or  deleterious 
drugs  or  mixtures,  to  wit]. 

Subscribed,  etc. 


No.  34- 

For  Railroad  Employee  Intoxicated,  etc— Section  51. 
[As  in  form  No.  28  to  the  *,  continuing]  violate  section  420  of  the  Penal 
Code  of  the  State  of  New  York,  and  that  he  did,  while  employed  as  engineer 


180 


FORMS. 


[conductor,  or  brakeman,  etc.],  become  and  was  intoxicated  while  engaged  in 

the  discharge  of  his  duties  as  such  engineer  on  the  railroad. 

Subscribed,  etc. 


No.  35. 

For  Selling  in  a  Court  House — Section  54. 

[As  in  form  No.  28  to  the  *,  continuing]  violate  section  32  of  the  Code  of 
Civil  Procedure,  and  did  on  that  day  sell  strong,  spirituous  or  fermented  liquors 
or  wines,  to  wit,  whiskey  and  ale,  in  the  building  established  as  the  county 

court  house  of  said  county,  situated  in  the  village  of  ,  and  while  a  court 

was  sitting  therein. 

Subscribed,  etc. 


No.  36. 

*  Complaint  to  a  Board  of  Excise  of  a  Violation — Section  49. 
I,  A.  B.,  a  resident  of  the  town  of  ,  county  of   ,  hereby  com- 
plain to  you,  as  the  board  of  commissioners  of  excise  in  and  for  the  said  town, 
and  allege  that  C.  D.,  a  hotel  keeper  of  said  town,  duly  licensed  to  sell  strong  and 
spirituous  liquors,  wines,  ale  and  beer,  under  and  by  virtue  of  the  excise  laws 
of  this  State,  has  violated  the  terms  and  conditions  of  his  license  by  selling 

strong  and  spirituous  liquors,  wines,  ale  and  beer,  on  Sunday,  the  day 

of   ,188   ,  to  E.  F.  and  a  number  of  other  persons  whose  names  are  to 

me  unknown  [or  recite  any  other  violation],  and  I  hereby  demand  that  you,  as 
such  board  of  excise,  summon  said  C.  D.  before  you  and  inquire  into  the  truth 
of  such  charges,  according  to  section  8  of  chapter  175  of  the  Laws  of  1870,  as 
amended  by  section  4,  chapter  549  of  the  Laws  of  1873. 

A.  B. 

To  tlie  Board  of  Commissioners  of  Excise  of  the  town  of  ,  county  of  


No.  37. 

Affidavit  under  Section  57,  Code  of  Criminal  Procedure,  where  the  Offender  desires 
the  Charge  Prosecuted  by  Indictment. 

County  of  ss. : 

A.  B. ,  being  duly  sworn,  says  that  he  has  been  arrested  upon  a  charge  of 
violating  section  13  of  chapter  628  of  the  Laws  of  1857,  for  selling  strong  and 
spirituous  liquors  in  quantities  less  than  five  gallons  at  a  time,  without  having 
a  license  therefor  as  provided  by  law  [or  any  other  offense  under  the  excise 

*  It  would  be  the  safer  way  to  have  proofs  accompany  the  above  complaint,  substantially 
like  form  No.  21.  This  would  compel  attention. 


FORMS. 


181 


law]  that  [here  state  reasons  for  prosecution  by  indictment].    Deponent  there- 
fore prays  that  an  order  may  issue  under  and  in  pursuance  of  section  57  of  the 
Code  of  Criminal  Procedure,  allowing  the  charge  against  deponent  to  be  prose- 
cuted by  indictment. 
Subscribed,  etc. 


No.  38. 

Certificate  under  Section  57  of  the  Code  of  Criminal  Procedure. 
I,  ,  county  judge  of  county,  do  hereby  certify  upon  proof  fur- 
nished me,  that  it  is  reasonable  that  the  charge  of  selling  strong  and  spirituous 
liquor  in  quantities,  etc.  [using  the  words  of  the  statute  characterizing  the 
offense  charged],  made  against  A.  B.,  and  wTho  is  now  under  arrest  upon  a 

warrant  issued  for  an  alleged  commission  of  said  offense,  by  ,  justice  of 

the  peace  of  the  town  of  ,  in  said  county  of  ,  be  prosecuted  by 

indictment,  and  I  hereby  fix  the  amount  in  which  the  defendant  shall  give  bail 

to  appear  before  the  grand  jury  at  the  sum  of  

C.  D., 

County  Judge,  or  Justice  of  the  Supreme  Court. 
On  filing  such  certificate  with  the  magistrate,  and  furnishing  bail  in  the 
amount  stated,  the  defendant  is  entitled  to  be  discharged. 

The  form  of  undertaking,  under  section  568,  Code  Criminal  Procedure,  can 
easily  be  made  applicable. 

There  are  forms  applicable  to  several  sections  of  the  excise  laws,  as  contained 
in  this  work,  which  it  is  not  considered  necessary  to  insert  here,  as  they  are  of 
limited  use  and  easily  prepared  from  t^e  Code  of  Criminal  Procedure.  (Banks' 
2d  edition.)  Beference  is  made  either  to  the  section  or  the  number  of  the  form 
as  contained  in  said  edition  of  the  code. 

Information  for  disorderly  house,  form  No.  34;  warrants,  sections  151  to  156; 
return  to  warrant,  form  No.  86 ;  statement  and  questions  put  to  defendant  by 
justice,  form  No.  90;  undertaking,  section  568;  commitment,  section  214; 
indictment,  section  276;  certificate  of  conviction,  section  721. 


INDEX. 


ACTIONS:  page. 

against  dealers  in,  and  sellers  of,  liquors                                       36,  50 

judgment  in,  revokes  license                                                     39,  43 

for  penalties,  by  whom  to  be  brought                                         37,  102 

when  brought  by  persons  not  officers                                    40,  104 

discontinuance  of,  without  consent   105 

on  bonds,  who  to  bring                                                     39,  106,  109 

ACT  OF  1857: 

sections  2,  3,  4  and  5  generally  superceded   25 

made  a  part  of  act  of  1870    42 

ACCOMMODATIONS: 

to  be  kept  by  hotel  keepers   30 

ADULTERATING: 

imported  liquors  a  misdemeanor    40 

foods  and  drinks   49 

AGENTS: 

sales  by,  when  principal  liable   100 

liable  for  their  own  wrongful  acts   108 

ALBANY: 

section  56,  Code  of  Criminal  Procedure,  not  applicable  to  44,  100 

ALE  AND  BEER: 

license  for  selling   42 

sale  of,  act  to  apply   42 

are  strong  and  spirituous  liquors                                               109.  114 

form  of  application  for  license  to  sell   1G1 

form  of  bond  for  license   164 

ALLEGANY  COUNTY: 

special  act  for   66 


184  INDEX. 

ANIMAL:  page. 

value  of,  belonging  to  guest  '   138 

APPRENTICE: 

liquors  not  to  be  sold  to   32 

fine  for  selling  to   33 

a  misdemeanor  to  sell  to   97 

APPLICATION: 

for  license,  bow  made   24 

APPOINTMENTS: 

to  fill  vacancies  in  towns   17,  85 

in  cities  generally   85 

under  special  statutes   85 

must  be  in  writing   85 

wbo  to  be  signed  by   86 

ARREST: 

of  persons  violating  excise  laws   33 

duties  of  officers  and  magistrates  in   33,  34 

by  village  officers  ,   74 

»       in  New  York  and  Brooklyn,  not  without  warrant,  except,  etc   21 

ATTORNEYS: 

may  be  employed  by  commissioners  of  excise   87 

by  overseers  of  the  poor   103 

legal  fees  and  disbursements  of,  how  paid  88,  103 

ATTORNEY-GENERAL: 

when  to  bring  actions  110 

opinions  of   122 

AUDITORS: 

to  audit  bills   88 

BALLOT: 

for  commissioners  of  excise,  to  be  separate   18 

how  prepared   84 

BEER: 

is  a  strong  and  spirituous  liquor   109,  114 

when  to  license  selling  of   23 

BLANKS: 

for  commissioners,  how  paid  for   43 

BOARD  OF  EXCISE: 

to  keep  records  24,  27 

how  composed   17 

to  grant  licenses   24,  26 


INDEX.  185 

BOARD  OF  EXCISE — (Continued).  page 

to  annul  licenses,  and  when   43 

full  number  required  to  make   89 

service  on,  how  made. .   89 

BONDS: 

must  be  executed  by  hotel  keepers   30 

must  be  executed  for  sale  of  ale  and  beer                                  30,  42 

contents,  sureties  and  conditions   30 

to  be  given  by  store-keepers   31 

terms  and  conditions  of                                                     31,  32 

where  and  when  to  be  filed   39 

breach  of    39 

who  to  bring  action  for  breach                                                  39,  106 

forfeiture  bond  not  a  penalty   38 

of  commissioners  of  excise                                                       18,  86 

effect  of  failure  to  file   87 

when  broken   110 

actions  on   109 

BOOKS: 

for  commissioners  of  excise,  how  paid  for   43 

BROOKLYN: 

commissioners,  how  appointed  in                                             18,  61 

salary  of  commissioners   61 

licenses,  how  and  when  granted   21 

when  licensee  may  remove   21 

licensee  not  to  be  arrested  without  warrant   21 

exception   22 

section  17  of  chapter  1,  not  applicable  to   22 

selling  liquors  in,  without  license  a  misdemeanor   22 

when  licenses  expire  in   23 

hotel  accommodations  not  required  to  procure  licenses                  21,  31 

special  acts                                                                           21,  60 

CHARITABLE  INSTITUTION: 

disorderly  children  may  be  sent  to   48 

CHILD : 

may  maintain  action  against  seller  36,  50 

CHILDREN: 

not  to  be  admitted  to  saloons   47 

not  allowed  to  play  games   47 

may  be  detained  as  witnesses   47 

disorderly,  how  disposed  of   48 


186 


INDEX. 


CIDER:  page. 
may  be  proved  to  be  intoxicating   30 

CITIES: 

license  fee  in   24 

having  population  of  more  than  30D,000   21,  23 

not  to  hold  election,  where  liquor  sold   46 

vacancies,  how  filled  in   85 

bills  against,  how  collected   88 

CIVIL  DAMAGE  ACT,  50,  51 : 

is  a  part  of  the  excise  laws  of  the  State   123 

general  provisions   123 

creates  a  new  cause  of  action   124 

jurisdiction  of  justices  of  the  peace  under                                  50,  125 

constitutionality  of   126 

when  cause  of  action  will  not  exist  under   127 

when  joint  action  will  not  lie  under   128 

recovery  under,  where  several  are  injured   129 

when  action  exists  for  loss  of  means  of  support   131 

when  action  exists  for  injury  to  person  or  property   132 

liability  of  owner  of  premises  under   132 

what  is  no  defense  under   134 

damages  under   135 

CIVIL  RIGHTS: 

all  persons  entitled  to  entertainment  by  innkeepers   141 

COMMISSIONERS  OF  EXCISE: 

to  be  elected  in  towns.    17 

who  not  to  be                                                                        17,  84 

election,  qualifications,  powers  and  duties                         17,  75,  77,  84 

compensation  of                                                                17,  43,  90 

one  to  be  elected  annually   18 

vacancies,  how  filled   18 

how  voted  for                                                                        18,  84 

oath  of  office  and  bond  of   18 

penalty  for  neglect  to  take  oath  or  file  bond   86 

form  of  oath  of  office   159 

form  of  bond  of   159 

oath  of  office  of,  who  to  be  taken  before   86 

to  be  appointed  in  cities   18-20 

shall  grant  licenses  in  New  York  and  Brooklyn,  and  when   21 


INDEX.  187 

COMMISSIONERS  OF  EXCISE— {Continued).  page. 

when  to  meet  to  grant  licenses  in  towns   23 

in  cities   23 

have  power  to  grant  licenses                                                     24,  26 

but  not  until  certain  conditions  are  complied  with   27 

may  grant  licenses  without  right  to  sell  liquors   45 

must  keep  records                                                                  24,  27 

to  deposit  book  of  minutes   43 

to  sign  licenses   27 

when  guilty  of  a  misdemeanor   30 

when  to  prosecute  for  penalties   38 

not  to  appoint  a  clerk   43 

to  annul  licenses,  and  when                                                      43,  89 

may  summon  and  swear  witnesses   44 

when  not  to  grant  license  in  three  years   39 

how  elected   84 

how  appointed   85 

cannot  assign  or  transfer  their  office   86 

how  office  vacated   86 

effect  of  failure  to  file  oath  of  office  or  bond   87 

two  persons  cannot  hold  same  office   87 

to  sue  for  penalties  in  certain  cases                                            38,  88 

may  employ  an  attorney   87 

must  meet  as  a  board                                                              88,  89 

when  cannot  be  coerced                                                          89,  90 

when  may  be  coerced                                                        90,    94  105 

when  may  be  indicted   90 

COMPLAINTS,  FORMS  OF.  . 

(See  Forms.) 

COMPANIES: 

incorporated,  not  to  employ  intemperate  persons   41 

CONCERT  SALOONS: 

children  not  to  be  allowed  in   47 

CONFLICTING  DECISIONS,  91,  92,  96,  98,  106. 
CONSTABLE: 

duties  of                                                                         33,  34,  42 

CONSTITUTIONAL: 

excise  law  is   116 

civil  damage  acts  is   126 

COSTS: 

when  plaintiff  personally  liable  for   104 


188 


INDEX. 


CONVICTION:  PAGE. 

revokes  license                                                                       39,  43 

in  what  courts  to  be    95 

punishment  under. . .   99 

no  bar  to  action  for  penalty   10? 

COURTS  OF  SPECIAL  SESSIONS: 

jurisdiction  of                                                                       45,  95 

exclusive  jurisdiction,  when   95 

COURT  HOUSES: 

liquors  not  to  be  sold  in   46 

DAMAGES: 

for  unlawful  selling   40 

plaintiff  may  recover   40 

under  civil  damage  act   123-136 

DANCE-HOUSES: 

children  not  to  be  allowed  in   47 

DAYS: 

when  sale  of  liquor  is  prohibited     37 

DECLATORY: 

of  chapter  145,  Laws  of  1879    20 

DEFENDANT: 

may  deny  official  character  of  officer   103 

DELIVERY: 

of  appointment  to  office,  not  necessary   86 

of  license  necessary   94 

DISORDERLY  PERSONS: 

certain  children  are  "   48 

who  are,  and  how  disposed  of   48 

DISTRICT  ATTORNEY: 

duties  of   110 

ELECTION: 

of  commissioners  of  excise   17,  84 

ballot  used  in   84 

ELECTION  DAY: 

not  to  sell  liquor  on   37 

penalty  therefor   37 

EMPLOYER: 

may  maintain  action  against  seller   50 


INDEX. 


189 


EVIDENCE:  page. 

when  knowledge  and  intent  must  be  shown   33 

official  character  may  be  shown  by  parol   103 

burden  of  proof,  where   107 

EXCISE  BOARD: 

metropolitan,  repeal  of   42 

EXCISE  MONEYS: 

how  disposed  of   18,  43 

when  for  town  expenses   46 

EXPENSES: 

of  procuring  books,  etc.,  how  provided  for   43 

FINES: 

for  selling  to  an  Indian  or  minor  under  fourteen  years   33 

for  selling  to  pauper,  etc   37 

for  selling  on  Sunday's  and  election  days   37 

for  adulterating  and  selling  imported  liquors   40 

for  intoxication  of  railroad  employee   44 

for  selling  to  person  after  notice  not  to  do  so   36 

for  Sabbath  breaking   142 

for  refusal  of  innkeeper's  to  receive  guests   142 

FORFEITURES. 

(See  Penalties  and  Forfeitures.) 

FORMS: 

oath  of  office  of  commissioner  of  excise   159 

bond  of  commissioner  of  excise   159 

application  for  innkeeper's  license   160 

application  for  store-keeper's  license   161 

application  for  license  to  sell  ale  and  beer   161 

bond  of  innkeeper   161 

bond  for  store-keeper's  license   163 

bond  for  sale  of  ale  and  beer   164 

license  to  sell  strong  and  spirituous  liquors,  and  wines,  ale  and  beer. .  165 
store-keeper's  license  to  sell  strong  and  spirituous  liquors,  wines,  ale 

and  beer   166 

license  to  sell  ale  and  beer  only   166 

complaint  against  hotel  keeper  for  failure  to  keep  requisite  accommo- 
dations   167 

complaint  against  hotel  keeper  for  failure  to  put  up  and  keep  up  a  sign,  168 
complaint  against  a  hotel  keeper  for  taking  security  for  liquors  trusted,  168 
complaint  for  selling  liquors  in  quantities  less  than  five  gallons  at  a 
time,  without  a  license    169 


190 


INDEX. 


FORMS — ( Continued).  PAGE, 
complaint  for  selling  liquor  to  be  drank  on  the  premises  without  a 

license   170 

complaint  against  an  officer  for  failure  to  arrest  a  person  intoxicated 

in  a  public  place   170 

complaint  against  a  magistrate  for  refusual  to  entertain  a  complaint  . .  171 

complaint  for  selling  or  giving  liquor  to  an  intoxicated  person  171 

complaint  to  overseer  of  the  poor  for  a  violation,  and  requesting  him 

to  prosecute  for  the  penalty  incurred   172 

proof  to  be  submitted  with   172 

complaint  against  hotel  keeper  for  selling  liquors  to  an  Indian,  ap- 
prentice or  minor  under  eighteen  years  of  age   173 

complaint  by  wife  or  husband  against  dealer  in  intoxicating  liquors 

for  illegally  selling  to  plaintiff's  husband  or  wife   173 

complaint  by  wife  that  her  husband  is  an  habitual  drinker  of  intoxi- 
cating liquors   174 

notice  to  dealers  not  to  sell  to  an  habitual  drinker   175 

complaint  on  hotel  keepers  bond   175 

complaint  under  the  civil  damage  act   177 

complaint  to  a  board  of  excise  of  a  violation   180 

informations,  for  selling  to  an  Indian  or  minor  under  fourteen  years. .  178 

for  public  intoxication   178 

for  selling  to  a  person  guilty  of  habitual  drunkenness   178 

for  selling  to  a  pauper  or  inmate  of  a  poor-house   179 

for  selling  on  election  day   179 

for  adulterating  or  selling  adulterated  imported  liquors   179 

for  railroad  employee  intoxicated  179 

for  selling  liquors  in  a  court  house   180 

affidavit  under  section  57,  Code  of  Criminal  Procedure,  where  the 

offender  desires  the  charge  prosecuted  by  indictment   180 

certificate  under  section  57  of  the  Code  of  Criminal  Procedure   181 

FREEHOLDERS: 

.  petition  of,  unnecessary   29,  93 

GAMBLING: 

not  allowed  in  hotets  . . . :   30 

GAMBLING  TABLE: 

billiard  table  is,  when   Ill 

GUARDIAN: 

may  maintain  action  against  seller   50 

not  to  sell  liquor  to  minor  without  consent  of   32 

penalty  for  selling  to  minor  without  consent  of   33 


INDEX.  191 

GUESTS:  page. 

of '  innkeeper's,  what  constitutes    148 

absconding,  guilty  of  misdemeanor   138 

loss  of  money,  jewels,  etc                                                      13T,  150 

loss  of  property  generally                                                       137,  153 

enforcement  of  their  rights  for  loss   156 

statutes  relating  to   137-143 

HABITUAL  DRUNKARDS: 

not  lawful  to  sell  to   36 

HAVERSTRAW: 

special  act   63 

HOTEL: 

license  to,  how  granted   27 

license  to,  when  expires   23 

license  to,  not  transferable                                                       94,  118 

license  fee  in  cities   24 

license  fee  in  towns   24 

license,  form  of   165 

license  to  be  posted  in  room  where  sales  made   24 

when  to  be  kept  closed   42 

definition  of   143 

to  keep  certain  accommodations   20 

must  be  necessary  before  licensed   30 

effect  of  revoking  license  to   39 

cannot  have  store  license   94 

(See  Inns  and  Innkeepers  ) 

HOTEL  KEEPERS: 

qualifications  of   29 

to  put  up  signs   31 

penalty  for  a  failure  to  put  up  sign   31 

not  to  trust  liquors  except  to  boarders   31 

security  given  to,  for  liquors  trusted,  void   31 

to  give  bonds  for  license   30 

contents,  sureties  and  conditions  of  bond   30 

form  of  bond    161 

what  accommodations  to  be  kept  by   30 

penalty  for  failure  to  keep  accommodations   30 

petition  of  freeholders  for  license  to,  not  necessary   30 

not  allowed  to  sell  to  Indian,  minor  or  apprentice   32 

penalty  therefor   33 

penalty,  how  recovered   33 


192  INDEX. 

HOTEL  KEEPERS — {Continued).  page. 

not  allowed  to  sell  to  habitual  drinker  after  notice   36 

penalty  therefor  *.   37 

not  allowed  to  sell  to  pauper   37 

penalty  for  violation   37 

actions  against,  by  whom  brought  for  penalties                       36,  38,  102 

actions  against,  on  bonds                                                       39,  106 

actions  against,  under  civil  damage  act                                      50,  123 

effect  of  revoking  license  to   39 

may  take  hotel  license  only   45 

duties,  liabilities,  etc.,  under  the  excise  laws   80-83 

for  what  penalties  liable                                                         81,  82 

cannot  assign  their  licenses   118 

(See  Hotel  and  Innkeepers.) 

HOUSE  OF  REFUGE: 

use  of  liquors  in   46 

HUSBAND: 

may  maintain  action  against  seller                                            36,  50 

liable  to  penalty  for  sale  by  wife   108 

ILLEGAL  TRADE: 

unlicensed  sale  of  liquor  is     118 

IMPRISONMENT: 

when  for  intoxication   35 

INCORPORATED  COMPANIES: 

not  to  employ  intemperate  persons   41 

may  build  or  keep  hotels,  and  when   142 

INDIANS: 

not  lawful  to  sell  to   32 

fine  for  selling  to   33 

a  misdemeanor  to  sell  to    97 

INDICTMENT: 

how  affected  by  Code  of  Criminal  Procedure   95 

when  commissioners  of  excise  may  be  indicted   90 

principles  governing   112 

INFORMER: 

evidence  by   108 

INFORMATIONS,  FORMS  OF: 

(See  Forms.) 

INJURY: 

by  intoxicated  person,  who  may  recover  for   50 


INDEX.  193 

INNOCENSE:  pa«e. 

presumed,  when  sale  made  by  agent   101 

INN: 

what  constitutes  one   143 

a  restaurant  is  not   143 

INNS: 

may  be  licensed   45 

statutes  relating  to   137-143 

what  are   143 

(See  Hotel;  Innkeepers.) 

INNKEEPERS: 

to  give  bond   30 

form  of  bond     161 

to  be  licensed   45,  144 

and  their  guests,  statutes  relating  to   137-143 

rights  of   144 

required  to  post  notices,  and  where   138 

duties  of,  to  their  guests  and  their  property   145 

refusing  to  receive  guests  guilty  of  misdemeanor   141 

lien  of   146 

lien  of,  how  enforced   139,  140 

absconding  guests  of    138 

may'keep  a  safe,  and  benefit  of  having   137 

liability  for  loss  of  money,  jewels,  etc   137,  150 

a  watch  is  not  a  jewel  or  ornament   152 

liability  for  loss  of  guest's  property  generally   153 

liability  of,  how  enforced   156 

(See  Hotel;  Hotel  Keepers.) 

INTEMPERATE  PERSONS: 

employment  of,  prohibited   41 

INTENT: 

question  for  a  jury   100 

INTOXICATING  LIQUORS: 

what  are   114 

INTOXICATED  PERSONS : 

not  lawful  to  sell  liquors  to   36 

penalty  for  a  violation   36 

not^allowed  as  employees  on  railroads   44 

punishment  for   44,  45 

injured  may  maintain  action  against  seller   50,  51 

when  a  person  is  intoxicated   116 

13 


194  INDEX. 

INTOXICATION:  PAOB. 

in  public  place,  and  arrest  therefor   34 

proceedings  and  punishment  for                                              34,  35 

by  employee  of  railroad,  punishment  for  44,  45 

no  excuse  for  crime  49,  117 

its  effect  upon  intent  to  commit  crime   49 

JAIL: 

liberties,  not  allowed  to  persons  convicted   41 

use  of  liquors  in   46 

JURY: 

accused  person  entitled  to  trial  by   99 

JUSTICE  OF  THE  PEACE: 

jurisdiction  of  45,  50 

cannot  be  commissioner  of  excise   17 

jurisdiction  under  civil  damage  act   125 

(See  Magistrates.) 

JUVENILE  REFORMATORIES: 

liquors  in   46 

KINGSTON: 

special  act  for   53 

LAGER  BEER: 

not  allowed  in  public  place   46 

when  intoxicating  ,   115 

LANDLORD  AND  TENANT : 

duties  and  responsibilities   118 

LIABILITY : 

of  commissioners  of  excise   30 

of  innkeeper  to  guest,  for  money,  jewels,  etc                             137,  150 

of  innkeeper  to  guest,  for  property  generally   153 

of  innkeeper  to  guest,  how  enforced   156 

LICENSE: 

in  New  York  and  Brooklyn   21 

when  and  how  granted  in  New  York  and  Brooklyn   21 

when  and  how  granted  in  towns  and  cities                                 23,  91 

when  to  expire  in  towns     23 

when  to  expire  in  cities   23 

for  part  of  a  year,  fee  for   23 

to  whom  granted   24 

application  for,  how  made   24 


INDEX.  195 

LICENSE — (  Continued) .  page. 

form  of  applications  for                                                         160,  161 

must  be  kept  posted   24 

to  be  exhibited  when  required  so  to  do   24 

effect  of  failure  to  exhibit   24 

record  of,  to  be  kept   24 

to  be  signed  by  commissioners   27 

to  be  in  writing  and  delivered   94 

when  to  be  granted  to  hotels   29 

when  to  be  granted  to  store-keepers    31 

what  to  contain  31,  32 

what  necessary  to  obtain                                                    24,  30,  31 

penalty  for  selling  without   32 

when  not  to  sell  under   42 

when  forfeited   43 

proceedings  to  annul                                                    39,  43,  89,  94 

conviction  for  a  violation,  forfeits  and  annuls   43 

to  innkeeper  without  privilege  of  selling  liquors   45 

for  sale  of  ale  and  beer  23,  45 

when  revoked,  another  not  to  be  issued   39 

fees  for                                                                                24,  86 

different  kinds  of,  defined   92 

conflicting  decisions  upon                                                        91,  92 

to  non-residents   93 

cannot  be  assigned   94 

does  not  authorize  sale,  except  where  taken  for   108 

fee  for,  how  disposed  of                                                        18,  19 

amount  of                                                                            24,  86 

for  part  of  a  year   23 

LICENSE  LAW: 

of  1857,  how  applicable   42 

LIEN: 

of  innkeepers   146 

disposition  of  guests  baggage  under                                          139,  140 

LIQUORS: 

license  for  selling   24 

may  be  sold  in  quantities  exceeding  five  gallons  24,  25 

but  not  to  be  drank  on  the  premises   25 

when  not  to  be  sold                                                                37,  42 

trusted,  no  recovery  therefor   31 


196  INDEX. 

LIQUORS — ( Continued).  page. 

not  lawful  to  sell  in  court  house   46 

punishment  for  a  violation   46 

not  allowed  in  poor-house,  etc   46 

ale  and  beer  are  strong  and  spirituous.   109 

LOCAL  ACTS: 

not  affected  by  excise  laws   42 

LOCKPORT: 

special  act  for   57 

MAGISTRATE: 

duties  of,  on  complaint  to   34,  36 

to  issue  warrants   34 

duty  of,  when  persons  intoxicated                                            34,  35 

duty  of,  on  complaint  of  wife,  husband,  etc   36 

to  give  notice  forbidding  sale   36 

sale  after  notice  unlawful   36 

duty  of,  on  conviction  for  a  violation   39 

duty  of,  in  case  of  disorderly  persons  and  children                       48,  49 

MANDAMUS: 

when  commissioners  connot  be  coerced   1 9 

when  commissioners  may  be  coerced                                    90,  94,  105 

MAYOR: 

to  appoint  commissioners   18 

to  nominate  commissioners  in  New  York  and  Brooklyn   18 

MEASURE: 

selling  by   32 

penalty  for,  without  a  license   32 

MEDINA: 

special  act  for   (34 

METROPOLITAN  POLICE  DISTRICT: 

excepted   46 

MINOR: 

not  lawful  to  sell  liquor  to                                                      32,  33 

penalty  for  selling  to   33 

not  to  be  allowed  in  certain  places   47 

not  allowed  to  play  games  in  certain  places   47 

MINUTE  BOOK: 

of  board  of  excise,  where  deposited   43 


INDEX.  197 

MISDEMEANORS;  page. 

selling  to  Indian  or  minor  under  fourteen  years                            33,  97 

commissioners  guilty  of,  when   30 

selling  liquors  on  Sunday  or  election  day.   37 

adulterating  imported  liquors  and  selling  same   40 

intoxication  of  employees  of  railroad                                         44,  45 

selling  in  court  house   46 

keeping  lager  beer,  etc.,  at  polling  place   40 

(See  section  155,  Penal  Code) 

allowing  liquors  in  jails,  etc   47 

allowing  children  in  certain  places   47 

allowing  children  to  play  games  in  certain  places   47 

physician  producing  injury  while  intoxicated   49 

adulterating  or  selling  certain  foods  and  drinks  49,  50 

selling  to  apprentice  or  minor  under  eighteen  years   97 

all  offenses  are,  when  caught  in  the  act                                      33,  98 

selling  to  intoxicated  person  not   100 

failure  to  keep  accommodations  .   97 

failure  to  keep  up  sign   87 

trusting  liquors  and  taking  security   97 

selling  without  license   97 

selling  to  be  drank  on  premises   97 

all  offenses  are  not,  17  (note)   97 

what  offenses  are,  17  (note)   97 

Absconding  guests   138 

Sabbath  breaking  is   142 

refusing  to  receive  and  entertain  guests   141 

MONEYS: 

license,  in  towns,  how  disposed  of   18 

in  cities,  to  whom  paid   19 

when  may  be  used  for  town  expenses   46 

MONEY,  JEWELS,  ETC.: 

liability  of  innkeeper  for  loss  of                                              137,  150 

MUNICIPAL  CORPORATIONS: 

powers  of   120 

NEWBURGH: 

special  act   52 

NEW  YORK  CITY: 

commissioners  in,  how  appointed     18 

salary  of  commissioners  in   19 


198  INDEX. 

NEW  YORK  CITY—  {Continued).  page. 

salary  of  commissioners,  how  paid   19 

disbursements  of  commissioners  in   19 

licenses  in,  how  and  when  granted   21 

licensee  in,  may  remove   21 

licensee  not  to  be  arrested  without  warrant   21 

exception   22 

section  17,  chapter  1,  not  applicable  to   22 

other  acts  not  affected   22 

excise  moneys,  how  disposed  of   19 

selling  liquors  in,  without  license  a  misdemeanor   22 

hotel  accommodations  not  necessary  to  procure  license                  21,  31 

special  statutes  relating  to  21,  67-74 

when  licenses  expire  in   23 

section  56,  Code  Criminal  Procedure,  not  applicable  to                  45,  100 

NON-RESIDENTS: 

license  to   93 

NOTICE: 

forbidding  sale  to  habitual  drinker   36 

form  of   175 

sale  after  notice,  penalty  for   37 

innkeepers  required  to  pest   138 

OATH  OF  OFFICE,  18,  86: 

by  whom  to  be  administered   86 

forfeiture  for  failure  to  take   86 

effect  of  failure  to  file                                                           ...  87 

form  of,  for  commissioner   159 

OFFENSE: 

intoxication  an                                                                      35,  99 

to  sell  to  intoxicated  person   100 

OFFENSES: 

what  are,  and  are  not  criminal   97 

misdemeanors  when  caught  in  act  of  committing   98 

OFFICE: 

title  to,  may  be  denied   87 

OFFICERS: 

duties  of                                                                       33,  34,  42 

may  employ  attorneys   87 

official  character  of,  how  proved   103 


INDEX. 


199 


ORANGE  COUNTY:  page. 

disposition  of  excise  moneys  in   53 

ORDINANCES: 

effect  of,  on  general  laws   120 

OVERSEERS  OF  THE  POOR: 

to  recover  penalty  for  failure  to  keep  accommodations   30 

duties  of,  in  case  of  habitual  drinker   36 

to  give  notice  in  certain  cases   36 

sales  after  notice,  unlawful   36 

to  prosecute  for  penalties  38,  102 

may  employ  an  attorney   103 

powers  and  duties  of   78-80 

what  penalties  to  sue  for   78 

when  may  discontinue  action   105 

when  may  be  coerced   105 

PARENT: 

may  maintain  action  against  seller  36,  50 

PAUPER: 

unlawful  to  sell  to     87 

PENALTIES  AND  FORFEITURES: 

who  may  prosecute  for                                                     38,  40,  102 

when  recovered,  how  disposed  of   38 

for  selling  to  Indian,  apprentice  or  minor   33 

for  taking  security  for  liquors  trusted   31 

for  failure  of  hotel  keeper  to  keep  accommodations   30 

for  failure  of  hotel  keeper  to  put  up  sign   31 

for  selling  without  license  to  be  drank  on  the  premises   32 

for  selling  by  measure  without  a  license   32 

for  store-keeper's  selling  to  be  drank  on  the  premises   32 

for  public  intoxication     35 

for  failure  to  arrest  intoxicated  person   35 

for  failure  of  magistrate  to  entertain  complaint   35 

for  selling  to  intoxicated  person   36 

for  selling  to  habitual  drinker  when  forbidden     36 

for  adulterating  imported  liquors  and  selling  same   40 

for  corporations  employing  intemperate  persons   41 

for  failure  to  take  oath  by  commissioners   86 

collection  of,  not  barred  by  a  conviction   107 

husband  liable  to,  for  sale  by  wife   108 

for  breach  of  bond                                                                 39,  110 


200  INDEX. 

PENALTIES  AND  FORFEITURES — ( Continued).  rAGE. 

conviction  for  any  offense,  forfeits  license   39 

for  public  selling  on  Sunday   142 

PENITENTIARIES: 

use  of  liquor  in  , . .    46 

PHYSICIANS: 

practicing  while  intoxicated,  a  crime   49 

POLICEMAN: 

duties  of                                                                       33,  34,  42 

POLLING  PLACE: 

not  to  be  where  liquor  is  sold   46 

POOR: 

surplus  moneys,  how  disposed  of   46 

POOR-HOUSES: 

use  of  liquors  in   46 

POUGHKEEPSIE: 

commissioners  in,  how  appointed   18 

special  statutes  for  ,   54 

PRACTICE: 

effect  of  failure  to  take  oath  of  office  and  file  bond   87 

title  to  office  may  be  denied   87 

when  burden  of  proof  on  defendant   106 

PRESIDENT: 

of  village  cannot  be  commissioner  of  excise   17 

PROOF: 

must  conform  to  offense  charged  -   107 

when  variance  is  immaterial   114 

questions  arising  under   119 

as  to  official  character   103 

when  burden  of,  is  on  defendant                                              106,  107 

to  be  furnished  officer   104 

PRISONS: 

use  of  liquor  in   46 

PROTECTORIES: 

use  of  liquor  in   46 

PUNISHMENT : 

for  intoxication   34.  35 

for  railroad  employee  intoxicated  44,  45 

kind  of,  to  be  imposed   99 


INDEX. 


201 


RAILROAD:  ™ge. 

employees  of,  punishment  for  intoxication                                  44,  45 

penalty  for  employing  intemperate  persons   41 

RECORD: 

to  be  kept  by  board  of  excise                                                 24,  27 

what  to  contain  ?   24 

to  be  kept  public,  and  where                                                    24,  27 

REPEAL  OF  STATUTES,  28,  121. 

RICHMOND  COUNTY: 

special  act   58 

ROCHESTER: 

special  act   58 

when  licenses  expire  in   23 

SAFE: 

in  office  of  innkeeper,  and  effect  of  having   137,  146 

SALARY: 

of  commissioners  in  cities   19 

of  commissioners  in  towns   17,  43 

SALE: 

of  certain  adulterated  articles  a  misdemeanor   40,  49,  50 

of  property  belonging  to  guest   139,  140 

SALOONS: 

children  not  to  be  allowed  in    47 

duties  and  liabilities  of  keepers  of   80-83 

SECURITIES: 

taken  by  hotel  keepers  for  trusted  liquors  void   31 

SERVICE: 

on  board  of  excise,  how  made   89 

SESSIONS: 

duties  of,  on  notice  of  conviction   39 

SHERIFF: 

duties  of   33,  34,  42 

fees  of,  how  paid   88 

SIGNS: 

to  be  put  up  by  hotel  keepers   31 

penalty  for  failure   31 

SPECIAL  ACTS: 

not  affected  by  general  laws   18,  121 


202 


INDEX. 


SPECIAL  SESSIONS:  PAGE. 

jurisdiction  of  45,  95 

exclusive  jurisdiction,  when   95 

SPECIAL  STATUTES: 

for  Allegany  county   66 

for  Brooklyn                                                                      21,  60 

for  Haverstraw  „   63 

for  Kingston   53 

forLockport   57 

for  Medina   64 

for  Newburgh   52 

for  New  York  21,  67-74 

for  Orange  county   53 

for  Poughkeepsie   54 

for  Richmond  county   66 

for  Rochester   58 

for  Troy   59 

forYonkers   56 

STATUTES: 

in  relation  to  excise  17-51 

in  relation  to  innkeepers  137-143 

STORE-KEEPERS: 

license  to,  what  to  contain   31 

to  be  men  of  good  moral  character   31 

to  execute  a  bond   31 

form  of  bond   163 

penalty  for  selling  to  be  drank  on  premises   32 

duties  and  liabilities  of,  etc   80-83 

SUMMONS: 

indorsement  on   105 

SUNDAY: 

not  lawful  to  sell  liquors  on   37 

penalty  for  violation   37 

public  selling  forbidden  on   141 

prepared  tobacco  not  to  be  sold  on,  where  liquor  sold   142 

SUPERVISORS: 

cannot  be  commissioners  of  excise   17 

board  of,  to  audit  bills   88 

TAVERN. 


(See  Hotel,  Hotel  Keeper,  Innkeeper.) 


INDEX.  203 

TIME :  pa  ee. 

when  sales  are  prohibited   37,  42 

TOWN  AUDITORS: 

to  audit  bills   88 

TOWN  CLERK: 

cannot  be  commissioner  of  excise   17 

TOWN  MEETINGS : 

not  lawful  to  sell  liquors  at   37 

commissioners  to  be  elected  at   17,  75 

TOWNS: 

commissioners  of  excise  in,  how  elected   17 

commissioners  in,  how  appointed   18,  85 

bills  against,  how  paid   88 

TREASURER,  COUNTY: 

to  receive  penalties   38 

TROY: 

special  act   59 

TRUSTEE  OF  VILLAGE: 

cannot  be  commissioner  of  excise   17 

UNCONSTITUTIONAL : 

part  of  section  23,  chapter  1,  is"   116 

VACANCIES: 

in  boards  of  excise,  how  filled  18,  85 

VAGRANTS: 

children  in  certain  company  or  places  are   48 

who  are,  and  how  disposed  of   48 

VILLAGES: 

have  no  separate  board  of  excise   44 

not  to  hold  election  where  liquors  are  sold   46 

only  applies  in  places  of  10,000  inhabitants   46 

(See  Section  19,  Chaptek  570,  1872.) 

WARRANTS: 

to  be  issued  by  magistrates   34 

no  arrest  without  in  New  York  and  Brooklyn  except,  etc   21 

arrest  without   33,  34 

arrest  without,  by  village  officers   74 


204 


INDEX. 


WIFE:  page. 

may  maintain  action  against  liquor  seller  30,  50 

proof  must  be'submitted  by   36 

YONKERS: 

special  act   50 


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